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Stabilizing Low-Wage Work

Charlotte Alexander,* Anna Haley-Lock,** and Nantiya Ruan***

Low-wage, hourly-paid service workers are increasingly subject to employ-ers’ “just-in-time” scheduling practices. In a just-in-time model, employers giveworkers little advance notice of their schedules, call workers in to work duringnon-scheduled times to meet unexpected customer demand, and send workershome early when business is slow. The federal Fair Labor Standards Act, themain guarantor of workers’ wage and hour rights, provides no remedy for theunpredictable work hours and income instability caused by employers’ last min-ute call-in and send-home practices. This Article examines two alternativesources of legal protection that have received little attention in the literature onlow-wage work: provisions in unionized workers’ collective bargaining agree-ments that guarantee a minimum number of hours of pay when workers arecalled in to or sent home from work unexpectedly, and state laws that containsimilar guaranteed-pay provisions. The Article concludes by assessing thesetools’ effectiveness in stabilizing low-wage work.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 RI. JUST-IN-TIME SCHEDULING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 R

II. IMPACT ON WORKERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 RIII. THE FAILURE OF THE FAIR LABOR STANDARDS ACT . . . . . . . . 13 RIV. REGULATING WORK HOURS THROUGH UNION CONTRACTS

AND STATE LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 RA. Call-In Pay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 RB. Send-Home Pay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 R

V. ASSESSMENT OF EFFECTIVENESS AND PROPOSALS FOR

REFORM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 RA. Broadening State Guaranteed-Pay Laws . . . . . . . . . . . . . . 34 RB. Amending the FLSA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 RC. Changing the DOL’s Interpretation of FLSA “On-Call”

Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 R

* Assistant Professor of Legal Studies, Department of Risk Management and Insurance, J.Mack Robinson College of Business, Georgia State University; secondary appointment, Geor-gia State University College of Law. The authors contributed equally and appear in alphabeti-cal order. The authors thank the participants in the 2013 Structuring Work In and AroundOrganizations workshop at the McGill Desautels Faculty of Management; the New Voices inLabor and Employment Law Discussion Group at the Southeastern Association of LawSchools 2013 annual conference, and especially Rick Bales and Alex Long; and the Universityof Denver Sturm College of Law faculty workshop. Lauren Parsons and Trent Lauridson pro-vided valuable research assistance.

** Associate Professor, School of Social Work, University of Wisconsin-Madison.

*** Lawyering Process Professor and Director, Lawyering Process Program, University ofDenver Sturm College of Law. Former Director, Workplace Law Program.


2 Harvard Civil Rights-Civil Liberties Law Review [Vol. 50

D. Engaging in Union and Worker Campaigns . . . . . . . . . . . 39 RCONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 RAPPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 R

Table 1: State Call-In Pay Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 RTable 2: State Send-Home Pay Laws . . . . . . . . . . . . . . . . . . . . . . . . . 46 R

INTRODUCTION

The Emmy Award-winning CBS show Undercover Boss follows thesame formula each week: A CEO, disguised as a new employee, spendsseveral days working on a company’s front lines. At the end of each epi-sode, the CEO reveals his or her true identity, sometimes fires some work-ers, rewards others, and often pledges to make changes to company policy toaddress issues discovered while undercover.

In a 2010 episode, Kimberly Schaefer, CEO of the Great Wolf Lodgechain of indoor waterpark resorts, works in disguise alongside Jackie, a frontdesk clerk. Jackie, who is a single mom, explains her variable work hours:“I work [from] 7:00 in the morning ’til 3:30 in the day . . . [or] 3:30 in theday until 11:30 at night. . . . I have no regularity.” She tells Kim, “[Thereare] days [my kids] wish I could stay home and be a parent . . . but I alwaystell them, ‘I’m your only income, so I have to go to work.’ . . . [M]y kids arein sports and I never get to go to a game . . . . I don’t get to be involved inanything. I just have to work.”1

At the end of the episode, Kim gives promotions and raises to employ-ees she met while undercover, a college scholarship for one employee’sdaughter, paid leave for a waitress with a new baby, and flight school tuitionfor another employee who dreams of flying. To Jackie, the front desk clerk,Kim gives paid leave to recover from knee surgery, a promotion, and, signif-icantly, “a 7:00 [AM]–3:00 PM shift, a permanent shift.” In tears, Jackieresponds, “I can be a mom again.”

The fact that Jackie is “rewarded” at the end of the show with a stableschedule suggests two things about the nature of contemporary low-wage,hourly work. First, work hour insecurity has become the norm.2 Rather than

1 Undercover Boss: Great Wolf Resorts (CBS television broadcast Oct. 3, 2010).2 STEPHANIE LUCE & NAOKI FUJITA, DISCOUNTED JOBS: HOW RETAILERS SELL WORKERS

SHORT 3 (2012), available at http://retailactionproject.org/wp-content/uploads/2012/03/7-75_RAP+cover_lowres.pdf, archived at http://perma.cc/4P8M-ZU9Z (describing increasingprevalence of unstable schedules in service jobs); Steven Greenhouse, A Part-Time Life, asHours Shrink and Shift, N.Y. TIMES, Oct. 27, 2012, http://www.nytimes.com/2012/10/28/business/a-part-time-life-as-hours-shrink-and-shift-for-american-workers.html?pagewanted=all,archived at http://perma.cc/Z248-XCMS (discussing growth in just-in-time schedulingpractices).

This Article defines “low-wage workers” as those “whose hourly wage rates are so low thateven if they worked full-time, full-year their annual earnings would fall below the poverty linefor a family of four.” U.S. DEP’T OF HEALTH & HUMAN SERVS., ASPE RESEARCH BRIEF 1(2009), available at http://aspe.hhs.gov/hsp/09/lowwageworkers/rb.pdf, archived at http://perma.cc/44ZS-R9XY. By another measure, a low-wage job is “one paying less than two-thirds


2015] Stabilizing Low-Wage Work 3

schedule a fixed number of workers for fixed shifts, employers adjust staff-ing levels in real time, calling workers in to meet unexpected customer de-mand and sending them home early when business lags.3 As a worker atclothing and housewares seller Urban Outfitters describes it, “[T]hey wouldcall you literally one hour before the shift, and then what do you do? I havealso had the experience where I got to work and then they would say, ‘I don’tneed you.’” 4 Indeed, a 2012 report on New York City retail workers foundthat only 17% of workers had a set schedule, and 70% were given fewer thanseven days’ advance notice of their work hours for the coming week.5 Theseworkers also reported average fluctuations in their weekly schedules of be-tween twelve and sixteen hours, meaning that one week’s hours could betwelve to sixteen hours higher or lower than the next.6 Another study ofover 6,000 retail service workers found that half of workers surveyed exper-ienced consistent days of work but shift times that fluctuated within thosedays, while 59% faced weekly changes in work days, shift times, or both.7

These practices are not limited to retail: restaurant owners and managersemploy similar strategies, routinely sending waitstaff home before the end oftheir scheduled shifts when customer traffic is slow.8 “Just-in-time” sched-uling has become so widespread in the service sector that a deviation from

of the median [U.S.] wage.” HEATHER BOUSHEY ET AL., THE MOBILITY AGENDA, UNDER-

STANDING LOW-WAGE WORK IN THE UNITED STATES 2 (Mar. 2007), available at http://www.inclusionist.org/files/lowwagework.pdf, archived at http://perma.cc/BT9Z-M5CW. Accord-ing to the Bureau of Labor Statistics, seven of the top ten occupations predicted to create themost jobs by 2020 are “low-wage service and laborer jobs.” See Annette Bernhardt, The Roleof Labor Market Regulation in Rebuilding Economic Opportunity in the United States, 39WORK AND OCCUPATIONS 354, 355 (2012) (citing C. Brett Lockhard & Michael Wolf, Occupa-tional Employment Projections to 2020, 135 MONTHLY LAB. REV. 84, 84–102 (2012)).

3 See, e.g., Anna Haley-Lock, Place-Bound Jobs at the Intersection of Policy and Manage-ment: Comparing Employer Practices in U.S. and Canadian Chain Restaurants, 55 AM.BEHAV. SCIENTIST 823, 833–34 (2011) (describing just-in-time scheduling practices in restau-rants); Susan J. Lambert, Passing the Buck: Labor Flexibility Practices that Transfer Risk ontoHourly Workers, 61 HUM. REL. 1203, 1203–09 (2008) (discussing unstable schedulingpractices).

4 Gus Lubin, Retail Workers Can’t Stand This Growing Management Trend, BUSINESS

INSIDER (Jan. 17, 2012), http://articles.businessinsider.com/2012-01-17/strategy/30634343_1_shifts-schedule-worker, archived at http://perma.cc/9A2X-KPVK.

5 LUCE & FUJITA, supra note 2, at 3. R6 See Authors’ original analysis of the data set in LUCE & FUJITA, supra note 2, reported R

fully in Charlotte Alexander & Anna Haley-Lock, Underwork, Work Hour Insecurity, and aNew Approach to Wage and Hour Regulation 11 (Ga. State Univ. Coll. of Law, Legal StudiesResearch Paper No. 2013-24, 2013), available at http://ssrn.com/abstract=2367070, archivedat http://perma.cc/E2CU-4N7V (forthcoming 2015, INDUSTRIAL RELATIONS).

7 JENNIFER E. SWANBERG ET AL., CITISALES STUDY: JOBS THAT WORK FOR HOURLY

WORKERS, ISSUE BRIEF NO. 1: INTRODUCTION 4 (2009), available at http://www.uky.edu/Centers/iwin/citisales/_pdfs/IB1-HourlyWorkers.pdf, archived at http://perma.cc/47P9-WH4Z.

8 See, e.g., Haley-Lock, supra note 3, at 833 (“Numerous managers also acknowledged Rthat they often sent scheduled waiters home, or called them to tell them not to come in, whenbusiness was unexpectedly slow.”).



the norm — Jackie’s “permanent shift” — can serve as a reward on par withpromotions, raises, and paid college tuition.9

The second insight that Undercover Boss provides is that work hourinsecurity creates substantial financial, logistical, and emotional problemsfor workers. These problems can be so significant that relief from them, asin Jackie’s case, makes for compelling television.10 Similar stories told byworkers at lingerie retailer Victoria’s Secret reveal that “being a mom” is notthe only thing that suffers as a result of unstable schedules: “Our hours fluc-tuate wildly, so we never know how much our paychecks will be, and sincewe don’t have guaranteed minimum hours, our hours are slashed withoutnotice — leaving us unable to pay our rent, succeed at school, get promo-tions, or take care of our families.”11 Workers also report having to take onsecond jobs to compensate for the hours they lose when shifts are cancelledwithout pay,12 and having to skip or drop out of school to make shifts thatare scheduled at the last minute.13

Just-in-time scheduling transfers the risk of doing business from em-ployers to their low-wage, hourly-paid employees.14 In economic terms, ser-vice-sector employers are externalizing the disruption caused by unexpectedchanges in customer demand, shifting it onto workers via last-minute sched-uling. In the process, they are deliberately reshaping the traditional, stable,full-time employment relationship to their advantage. Just-in-time schedul-ing is in fact one of an array of related cost-cutting strategies that servicesector employers have adopted as the economy has worsened, including con-

9 Of course, the practice of adjusting staffing to handle unexpected changes in demand isnot new, such as when a large party enters a restaurant without a reservation. This type ofoccasional, ad hoc request for extra help is distinct from the just-in-time scheduling practicesthat are the subject of this Article. In a just-in-time scheduling regime, requests from manag-ers to handle unexpected demand are not occasional or abnormal; they, along with early send-homes, are the new norm, as employers’ scheduling and staffing practices increasingly producefluctuating, variable, and unpredictable work hour assignments.

10 Not only is Jackie in tears at the end of the episode, but Kim, the CEO, is too. The twohold hands and hug as they discuss the challenges Jackie has faced in trying to manage herunstable work schedule while parenting her children.

11 Victoria’s Secret: Don’t Keep Workers’ Schedules a Secret, CHANGE.ORG (July 23, 2013,12:53 AM), http://www.change.org/petitions/victoria-s-secret-don-t-keep-workers-schedules-a-secret, archived at http://perma.cc/F4BM-8XJN.

12 See Maggie Freleng, Retail Workers Fight “Just in Time” Scheduling, WOMENSENEWS

.ORG (Nov. 12, 2012), http://womensenews.org/story/equal-payfair-wage/121109/retail-work-ers-fight-just-in-time-scheduling#.Ud9Lm20yhvI, archived at http://perma.cc/CV9Z-M5EQ(describing a worker who would report for a scheduled shift, only to be sent home because thestore was overstaffed: “I didn’t get paid for that at all. It was hard to work around that”);Susanna Kim, Abercrombie and Fitch, Other Retail Workers Protest “Abusive” Scheduling,ABC NEWS (Oct. 17, 2012), http://abcnews.go.com/Business/abercrombie-fitch-best-buy-re-tail-workers-protest-abusive/story?id=17501604#.UeA0r20yiVh, archived at http://perma.cc/TR9N-CMD3.

13 See Freleng, supra note 12 (describing a worker having “to take on a second job and at Rtimes skip classes to attend on-call shifts she [is] required to make in order to keep her job”).

14 See generally JACOB HACKER, THE GREAT RISK SHIFT 61–86 (2006) (describing in avariety of settings the ways in which institutions have shifted risk onto workers and theirfamilies rather than absorbing the risk themselves).



verting formerly full-time jobs to part-time15 and relying more heavily ontemporary, contingent, and contract labor.16 As the CFO of restaurant chainJamba Juice reports, such practices, aided by sophisticated schedulingsoftware, have “‘helped us take 400, 500 basis points out of our labor costs’. . . a savings of millions of dollars a year.”17 Often, these savings are beingextracted from workers who are particularly ill-equipped to absorb the im-pact of inadequate, variable, and unpredictable work hours, as they alreadyexist at the edge of poverty with little to no job security.18

U.S. employers have wide discretion over establishing these conditions,and the federal Fair Labor Standards Act (“FLSA”),19 the main legal mecha-nism for assuring a wage floor for workers, does not reach this issue.Though the FLSA guarantees a minimum wage for all hours worked andrequires overtime pay for more than forty work hours per week, it does notestablish minimum hours requirements or regulate employers’ schedulingpractices.20 Nor does it offer protection to a worker who is given fewer workhours than she believed a job would provide.

This Article examines two alternative approaches to regulating unpre-dictable work hours and income instability in low-wage workplaces: (1) con-tract terms in unions’ collective bargaining agreements (“CBAs”) thatrequire “call-in pay” and “send-home pay,” and (2) statutes and regulationsin some U.S. states and the District of Columbia that contain similar mini-

15 Economic News Release: Table A-8. Employed Persons by Class of Worker and Part-Time Status, BUREAU OF LABOR STATISTICS (Aug. 2, 2013), http://www.bls.gov/news.release/empsit.t08.htm, archived at http://perma.cc/64PS-64KW (reporting that 25.5 million workersin America are considered part-time, defined as working thirty-four or fewer hours in a week;8.3 million are “involuntarily” part-time, representing those who want but are denied full-timehours).

16 See Gillian Lester, Careers and Contingency, 51 STAN. L. REV. 73, 74 (1998) (“[T]hemost celebrated ‘crisis of work’ of the past decade is the perceived replacement of careeremployment with ‘contingent’ jobs of limited duration, hours, or security.”); Michael Grabell,The Expendables: How the Temps Who Power Corporate Giants Are Getting Crushed,PROPUBLICA (Jun. 27, 2013), http://www.propublica.org/article/the-expendables-how-the-temps-who-power-corporate-giants-are-getting-crushe, archived at http://perma.cc/E9JN-7PJ4(citing data from the Bureau of Labor Statistics and the American Staffing Association report-ing that since the end of the recession in mid-2009, “almost one-fifth of the total job growth. . . has been in the temp sector,” in jobs which typically lack benefits, security, and a pathtoward promotion).

17 Greenhouse, supra note 2; see also NANCY K. CAUTHEN, DEMOS, SCHEDULING HOURLY RWORKERS: HOW LAST MINUTE, “JUST-IN-TIME” SCHEDULING PRACTICES ARE BAD FOR WORK-

ERS, FAMILIES AND BUSINESS 1 (2011), available at http://www.demos.org/sites/default/files/publications/Scheduling_Hourly_Workers_Demos.pdf, archived at http://perma.cc/6PDM-YFHE (“Used widely in the service sector, employers rely on scheduling software and mea-sures of demand (such as floor traffic, sales volume, hotel registrations, or dinner reservations)to match workers’ hours to labor needs.”).

18 See infra notes 53–57 and accompanying text. R19 29 U.S.C. §§ 201–219 (2012).20 In some narrowly defined circumstances, the FLSA does require payment of wages to

workers who are held in an “on call” status for the time they spend waiting to be summoned towork. As Part III discusses further, courts have not extended, and are not likely to extend, this“on call” protection to workers who are subject to just-in-time scheduling. See infra notes104–108 and accompanying text. R



mum hours and pay guarantees. These contractual, statutory, and regulatoryrules, referred to here collectively as “guaranteed-pay provisions,” requireemployers to pay a minimum number of hours of wages to workers who arecalled in to or sent home from work unexpectedly. The hours guaranteesapply even if workers do not actually perform that many hours of work:Workers are usually entitled to the guaranteed minimum or their actual hoursworked, whichever is greater.

By attempting to establish some predictability in work hours and in-come, guaranteed-pay provisions are designed to protect workers’ expecta-tions about when their time will be their own and when they will be requiredto work.21 They also create a financial disincentive for employers to shift therisk of business fluctuations onto their workforce through last-minute sched-uling changes.22 Though many guaranteed-pay provisions significantly pre-date the current popularity of just-in-time scheduling,23 these legal remediesappear to be relatively underutilized by workers today.24 In addition, despiteincreasing scholarly and media attention to scheduling and work hour issues,there has been little recent focus on these tools for stabilizing low-wagework.25 This Article begins to fill that gap.

21 Roger I. Abrams & Dennis R. Nolan, Buying Employees’ Time: Guaranteed Pay UnderCollective Agreements, 35 SYRACUSE L. REV. 867, 872 (1984) (noting that “call-in pay repre-sents . . . the price of availability outside the employee’s regular shift” (citation and internalquotation marks omitted)).

22 As with any discussion of the enactment of additional workplace regulations or ex-panded enforcement of existing ones, one might argue that guaranteed-pay requirements resultin employers’ hiring fewer workers for more hours, thereby eliminating jobs. This is an empir-ical question that has not been investigated. In labor-intensive service industries, however,there is likely an employment floor below which employers cannot go, as some minimumnumber of staff are needed to wait tables, cater to hotel guests, and assist retail shoppers.

23 See, e.g., Walter P. Reuther, The United Automobile Workers: Past, Present, and Fu-ture, 50 VA. L. REV. 58, 73 (1964) (noting that the UAW union “established the principle[ ] of‘call-in pay’ in 1939” and defining “‘[c]all-in pay,’ otherwise known as ‘reporting pay’ [a]s aminimum guaranteed to employees who report for work as scheduled”).

24 See infra notes 144–147 and accompanying text. R25 Media outlets and scholars have devoted significant recent attention to scheduling is-

sues. See, e.g., Steven Greenhouse, Part-Time Schedules, Full-Time Headaches, N.Y. TIMES

(July 18, 2014), http://www.nytimes.com/2014/07/19/business/part-time-schedules-full-time-headaches.html?_r=0, archived at http://perma.cc/8ZE7-FN8R (discussing scheduling issues);Greenhouse, supra note 2; Gus Lubin, supra note 4 (discussing variable schedules); see gener- Rally LOW-WAGE AMERICA: HOW EMPLOYERS ARE RESHAPING OPPORTUNITY IN THE WORK-

PLACE (Eileen Appelbaum, Annette Bernhardt & Richard J. Murnane eds., 2006); Julia R.Henly, H. Luke Shaefer & Elaine Waxman, Nonstandard Work Schedules: Employer- andEmployee-Driven Flexibility in Retail Jobs, 80 SOC. SERV. REV. 609, 609–34 (2006) (explor-ing the challenges created by a lack of control over scheduling); Lambert, supra note 3, at R1203–27 (focusing on how managers use variable scheduling to promote labor flexibility inways that are disadvantageous for some workers); Susan J. Lambert & Anna Haley-Lock, TheOrganizational Stratification of Opportunities for Work-Life Balance: Addressing Issues ofEquality and Social Justice in the Workplace, 7 COMMUNITY, WORK & FAM. 181, 181–97(2004); Nantiya Ruan, Same Work, Different Day: A Survey of the Last Thirty Years of WageLitigation and its Impact on Low-Wage Workers, 30 HOFSTRA LAB. & EMP. L.J. 355 (2013);Francoise Carre & Chris Tilly, America’s Biggest Low-Wage Industry: Continuity and Changein Retail Jobs (Inst. for Research on Labor and Emp’t, Working Paper No. 2009-6, 2008)(examining the quality of compensation, scheduling, and hiring and promotions in retail jobs).



Part I summarizes the social science literature on variable work hoursand income instability and presents examples of call-in and send-home prac-tices in the restaurant, retail, and hospitality sectors. Part II explores theimpact on workers of unpredictable work hour fluctuations and income in-stability caused by “just-in-time” scheduling. Part III addresses the lack ofcoverage under the FLSA for the problems caused by call-in and send-homepractices. Part IV describes the contractual, statutory, and regulatory protec-tions offered by CBAs and state laws. Part V assesses these tools’ effective-ness and discusses additional possible strategies for increasing stability inlow-wage, hourly jobs. The Appendix offers a comprehensive list and briefsummary of all state call-in and send-home pay laws.

I. JUST-IN-TIME SCHEDULING

Today’s just-in-time scheduling practices in service jobs had their originin 1950s Japan as a way to eliminate waste in manufacturing.26 According tothe just-in-time philosophy, “waste” is “anything other than the minimumamount of equipment, materials, parts, space, and workers’ time, which areabsolutely essential to add value to the product or service.”27 In the manu-facturing context, this means reducing the amount of inventory stored inwarehouses, and instead “produc[ing] goods ‘just in time’ to meet customerdemand.”28 In other words, “the aim of just-in-time . . . is to perfectly matchthe output of a manufacturing system to the needs of a market.”29 Wal-Marthas become synonymous with just-in-time inventory management strategies,famously receiving continuous deliveries of goods to its warehouses, “wherethey are selected, repacked, and then dispatched to stores, often without eversitting in inventory. Instead of spending valuable time in the warehouse,goods just cross from one loading dock to another in 48 hours or less.”30

However, the only comprehensive treatment of guaranteed-pay provisions in either CBAs orstate laws in the law review literature was written in 1984, and focused only on union con-tracts. See Abrams & Nolan, supra note 21, at 867 (examining the way in which arbitrators Rhandled labor disputes arising under CBAs’ guaranteed-pay provisions).

26 Cem Canel, Drew Rosen & Elizabeth A. Anderson, Just-in-Time Is Not Just for Manu-facturing: A Service Perspective, 100 INDUS. MGMT. & DATA SYS. 51, 51 (2000) (surveyingthe history of just-in-time manufacturing practices); Pei-Chun Lai & Tom Baum, Just-in-TimeLabour Supply in the Hotel Sector: The Role of Agencies, 27 EMP. REL. 86, 93–94 (2005) (“Apull scheduling technique, the kanban system (Japanese for card), employed in the [just-in-time] system seeks to ensure that preceding operations within the manufacturing chain onlysupply and produce as much as is needed by succeeding operations. . . . Using the kanbansystem, JIT elements are produced to meet exact demand.”).

27 Canel, Rosen & Anderson, supra note 26, at 51; see also Nick Oliver, The Dynamics of RJust-In-Time, 6 NEW TECH., WORK, AND EMP’T. 19, 19 (1991) (“At its simplest, a just-in-timesystem means simply that final assembly produces goods just-in-time to be sold; sub-assem-blies produce goods just-in-time for final assembly; and bought out parts arrive from outsidesuppliers just-in-time to be fabricated into subassemblies.”).

28 CAUTHEN, supra note 17, at 3. R29 Oliver, supra note 27, at 19. R30 George Stalk, Philip Evans & Lawrence E. Shulman, Competing on Capabilities: The

New Rules of Corporate Strategy, HARV. BUS. REV., Mar.–Apr. 1992, at 58.



Over time, the just-in-time philosophy migrated from inventory man-agement to labor management, taking hold in service sector industries —restaurants, retail, and hospitality — which employ large numbers of low-wage, hourly-paid workers.31 As employment scholar Susan Lambert hasobserved, because jobs in these industries are “low-skill, non-productionjobs,” “[e]xcess labor . . . cannot be absorbed by producing [additional]goods for inventory.”32 Instead, in employers’ eyes, excess labor in restau-rants, retail stores, and hotels takes the form of service workers “sitting thereand doing nothing.”33 As a result, “pressures to quickly adjust work hoursto demand [by adopting just-in-time scheduling models] are likely to beespecially strong.”34 While employers generally strive to keep hours (andtherefore payroll) to the barest minimum, they also have a specific incentiveto keep workers’ weekly hours below forty, the trigger point under the FLSAfor time-and-a-half overtime pay, and, now, thirty, the threshold abovewhich employers must provide health insurance under the new Patient Pro-tection and Affordable Care Act.35

Though there has been no definitive study of the prevalence of just-in-time scheduling across the service sector, scholars of low-wage work assertthat it is “absolutely common place.”36 An analysis of 2007 census data forall U.S. workers suggests that about 6% of full-time hourly workers hadvariable hours, while almost 11% of part-time hourly workers’ hours va-

31 CAUTHEN, supra note 17, at 3 (“Service industries that rely on large numbers of low- Rwage hourly workers quickly adapted the [just-in-time] concept by calibrating employee workhours to closely match service demand. Adjusting work schedules week by week, day by day,and even hour by hour, employers seek to ensure they have just enough workers to meet theneed of the moment.”).

32 Lambert, supra note 3, at 1209 (internal quotation marks omitted). R33 Lai & Baum, supra note 26, at 96. R34 Lambert, supra note 3, at 1209. R35 Id. at 1208–09 (“For example, when fixed costs are low, managers may keep

headcounts high in order to avoid paying overtime or to maximize their ability to call workersin at the last minute.”); Carre & Tilly, supra note 25, at 12 (“Managers must sparingly manage Rtheir use of work hours and many retailers control manager access to overtime for hourlyworkers (paid time and a half for hours over 40).”). See also 26 U.S.C. § 4980H(c)(4)(A)(2012) (requiring large employers to offer employer-sponsored health insurance plans to em-ployees who, “with respect to any month, [are] employed on average at least 30 hours ofservice per week”). Employers may also reduce workers’ hours to keep them in part-timestatus and avoid any obligation under a company’s own internal policies to pay fringe benefits.

36 CAUTHEN, supra note 17, at 5 (quoting Susan Lambert, Audio Conference at the Center Rfor Law & Social Policy: Scheduling Hourly Workers in a Just in Time World: Can Employeesand Employers Sync the Clock? 2 (Dec. 11, 2009) (transcript available at http://www.clasp.org/documents/CLASP_121109-2-DS.pdf, archived at http://perma.cc/R5VY-PWTQ)). Ac-cording to the 2008 National Study of the Changing Workforce, between 20% and 30% ofworkers encounter this version of “just-in-time” scheduling in their jobs. LIZ WATSON &JENNIFER E. SWANBERG, FLEXIBLE WORKPLACE SOLUTIONS FOR LOW-WAGE HOURLY WORK-

ERS: A FRAMEWORK FOR A NATIONAL CONVERSATION 22 (2011), available at http://workplaceflexibility2010.org/images/uploads/whatsnew/Flexible%20Workplace%20Solutions%20for%20Low-Wage%20Hourly%20Workers.pdf, archived at http://perma.cc/SA6P-U8JS.



ried.37 Studies of service jobs report much higher percentages. A report onretail employment notes that “[a]lmost 30 percent of workers report havingschedules with variable start and end times,” and half of participants inter-viewed had schedules “posted with advance notice of 1 week or less.”38

The mechanics of just-in-time scheduling tend to follow the same broadoutlines across service jobs. An employer monitors consumer demand as itrelates to labor costs, often assisted by tracking software.39 In a retail set-ting, these demand data may include “floor traffic or sales volume”; in res-taurants and hotels, they might include meal and room reservations.40

Managers may consider annual, monthly, weekly, or daily demand trends,and some even report monitoring demand every fifteen or thirty minutes.41

Using these data, managers estimate future demand and make staffing andscheduling decisions that are designed to maintain a “specified ratio of em-ployee hours worked to [the designated] measure of consumer demand.”42

In theory, employers armed with such data should be able to make ac-curate demand forecasts and schedule workers in a way that both preservesthe targeted labor-demand ratio and maintains some consistency and predict-ability in employees’ work hours. If, for example, a scheduling softwareprogram tells an employer that women’s clothing sales tend to spike around12:30 PM on sunny Fridays in June, then the employer should be able to setstaffing levels accordingly.43 In practice, however, employers’ demand datamay be wrong, employers may not use the data available to them, or theymay use their data but have little incentive to inform workers of their sched-ules in advance, relying instead on last-minute call-ins and send-homes.44

37 Lambert, supra note 3, at 1208 (“Analyses of 2007 CPS data indicate that 5.7 percent Rof full-time, hourly workers and 10.6 percent of part-time, hourly workers report that their‘hours vary.’”).

38 Henly, Shaefer & Waxman, supra note 25, at 610, 621. R39 See, e.g., Gary M. Thompson, Labor Scheduling, Part 4: Controlling Workforce Sched-

ules in Real Time, 40 CORNELL HOTEL & RESTAURANT ADMIN. Q. 85, 86–95 (1999) (describ-ing methods of demand tracking).

40 CAUTHEN, supra note 17, at 1, 4. R41 See Anna Haley-Lock & Susan Lambert, Delivering Income and Schedule Stability in

Hourly Retail Jobs: The Costco Case (2013) (Jan. 2015) (unpublished manuscript) (on file withauthors) (describing fifteen-minute increment monitoring). In restaurants, employers often ad-just staffing levels during the day, sometimes in half-hour or shorter increments, in order toachieve predetermined ratios between labor and customer sales. Haley-Lock, supra note 3, at R833; see also Lambert, supra note 3, at 1212–13 (“Managers responsible for scheduling staff Rwere given a base number of hours to distribute among employees. This initial number wascalculated from projected sales (or traffic), commonly based on corporate projections derivedfrom analyses of prior sales and current retail trends.”).

42 CAUTHEN, supra note 17, at 4. R43 See Greenhouse, supra note 2 (describing scheduling software such as Kronos and R

Dayforce that account for customer demand and even weather forecasts in setting staffinglevels).

44 Lambert, supra note 3, at 1213 (“For example, when sales were below expectations, Rmanagers reported that they might ‘save hours’ by not calling in a replacement when anothersales associate called off work, or they might ask for volunteers to come in an hour later orleave an hour earlier another day, making the adjustment at least predictable.”).



For example, studies of restaurant employment in rural and urbanWashington State and suburban Seattle and Chicago found that restaurantscarefully monitored ratios between labor costs and customer sales, whichcould fluctuate during as well as across shifts, days, and seasons.45 In onerural Washington restaurant, the owner established a target of 21% as hislabor cost-to-sales ratio.46 The manager on duty checked the ratio everythirty minutes and sent staff home to ensure compliance with the 21% fig-ure.47 Similarly, an urban restaurant owner reported a goal of capping laborcosts at 30% of sales, using the send-home practice to make adjustments asneeded during the day.48

General managers at two chain restaurant sites described similar sched-uling conventions. At one suburban location, waitstaff stayed “if the restau-rant [was] busy,” but went home “really quickly” if business slowed.49

This manager also retained one reserve “on-call” waiter who went unpaidunless the waiter was called in, but was required as a condition of employ-ment to stay available for work in the case of an unpredicted uptick in cus-tomer traffic.50 Likewise, a manager at a rural chain location usuallyreduced waitstaff levels every thirty minutes, starting with nine employeesand going as low as four, if business proved slower than expected.51

The retail and hospitality industries employ comparable last minutecall-in and send-home practices. The stories of workers profiled in the open-ing paragraphs illustrate employers’ use of just-in-time scheduling in retailstores. In addition, a hospitality industry trade publication lists the follow-ing “real time control actions” over hotel employees’ schedules, some ofwhich may have been used to set Jackie’s variable hours at Great WolfLodge: “sending employees to or recalling them from break, extending thelength of an employee’s shift . . . sending employees home early, [and]calling additional employees in to work.”52

In just-in-time scheduling regimes such as these, work hours becomelike Wal-Mart’s inventory. Instead of sitting in a warehouse waiting to bepurchased, Wal-Mart products are delivered from the manufacturer onlywhen consumer demand requires. And instead of waiting in a restaurant,hotel, or retail store to serve customers, workers are called to work only

45 See generally Anna Haley-Lock, The Structural Contexts of Low-Wage Work: Restau-rant Employment Practices Across Firm Geography, Size, and Ownership Status, 16 J. POV-

ERTY 447, 447–68 (2012); Haley-Lock, supra note 3, at 823–42. R46 Haley-Lock (2012), supra note 45, at 458. R47 See id. at 458–59.48 See id. at 458.49 Id. at 459.50 Id. See generally infra Part III, discussing the legal rules governing whether such on-

call waiting time would be compensable under the FLSA.51 Haley-Lock (2012), supra note 45, at 459. R52 Thompson, supra note 39, at 86. Likewise, a study of the use of just-in-time scheduling R

practices in the Scottish hospitality industry managers reported that such practices — alongwith using third-party employment agencies to provide hotel staff — prevented workers from“sitting there and doing nothing.” Lai & Baum, supra note 26, at 96. R



when customers need to be served, and sent home when customer flowwanes. In this way, employers shift the risk of variable business trends ontotheir low-wage, hourly-paid workforce, using reductions in labor to absorbbusiness losses.

II. IMPACT ON WORKERS

Employers’ risk-shifting creates three distinct problems for low-wageworkers: (1) inadequate work hours; (2) variable work hours; and (3) unpre-dictable work hours. Each alone can cause significant logistical, economic,and emotional problems for workers; together, inadequate, variable, and un-predictable work hours can severely impede workers’ ability to balance workand family responsibilities, as well as to manage financial obligations andbudget, plan, and save.53

First, inadequate work hours due to employers’ early send-home prac-tices may threaten workers’ eligibility for employer-provided benefits thatare available only to workers who qualify as “full time.”54 Moreover, earlysend-home practices may reduce workers’ hours below the threshold re-quired for public benefits programs such as Temporary Assistance for NeedyFamilies and child care subsidies that act as a safety net for the workingpoor.55 Inadequate work hours also endanger the income stability of an al-ready vulnerable working population. Hourly-paid service workers’ earningsare already at the bottom of the wage scale.56 Reductions in hours due tojust-in-time scheduling keep these workers in a constant state of “under-work,” where they are assigned fewer hours, and therefore earn less incomethan they need to live.57

53 See Susan J. Lambert, Anna Haley-Lock & Julia R. Henly, Schedule Flexibility inHourly Jobs: Unanticipated Consequences and Promising Directions, 15 COMMUNITY, WORK

& FAM. 293, 293–315 (2012); Susan J. Lambert, Lessons from the Policy World: How theEconomy, Work Supports, and Education Matter for Low-Income Workers, 36 WORK AND OC-

CUPATIONS 56, 56–65 (2009).54 See 26 U.S.C. § 4980H(c)(4)(A) (2012) (defining health insurance-eligible employees

as those who, “with respect to any month, [are] employed on average at least 30 hours ofservice per week”); CARMEN DENAVAS-WALT, BERNADETTE D. PROCTOR & JESSICA C. SMITH,U.S. CENSUS BUREAU, CURRENT POPULATION REPORTS, P60-243: INCOME, POVERTY, AND

HEALTH INSURANCE COVERAGE IN THE UNITED STATES: 2011 25 & n.45 (2012), available athttp://www.census.gov/prod/2012pubs/p60-243.pdf, archived at http://perma.cc/5YTN-3E4C(noting that employees working for at least thirty-five hours per week and for at least fiftyweeks per year “were more likely to be covered by health insurance” than employees workingless frequently).

55 See, e.g., 42 U.S.C. § 607(c)(1)(A)–(B) (2012) (establishing mandatory minimum workhours as a condition of eligibility for benefits under the Temporary Assistance for Needy Fami-lies Program).

56 See Characteristics of Minimum Wage Workers: 2012, BUREAU OF LABOR STATISTICS

(2013), http://www.bls.gov/cps/minwage2012.htm, archived at http://perma.cc/Q3MU-KU65(reporting that “three-fifths of workers earning the minimum wage or less in 2012 were em-ployed in service occupations”).

57 Arne L. Kalleberg, The Mismatched Worker: When People Don’t Fit Their Jobs, 22ACAD. MGMT. PERSP. 24, 31 (2008) (discussing the concept of underwork, and noting that



Second, variable work hours can prevent workers from engaging in thesort of long-term budgeting and saving that might enable them to leave low-wage work entirely, for example by establishing an emergency savings fundor retirement or education savings accounts. As one New York City retailworker comments, “I have been scheduled for as few as six hours in a week,and as many as 40, so my paycheck is always different. How is anyone . . .supposed to plan their budget with such erratic schedules?”58 Variableschedules have also been shown to harm family dynamics. Studies havefound that families led by parents working unstable schedules are less ableto follow consistent household routines around children’s homework com-pletion and shared meals.59 Other research has reported statistically signifi-cant associations between parents’ working nonstandard hours and work-family conflict, marital problems, and fewer hours spent with children.60

Even for workers without caregiving responsibilities, variable schedules canimpede planning around education, secondary employment, transportation,and other personal obligations.61

Third, layering unpredictability on top of work hour inadequacy andvariability can have particularly “dire implications for workers with careresponsibilities.”62 When workers with dependents are required to come inat a moment’s notice, they are put in untenable situations of finding last-minute coverage, paying premium rates for unplanned care, or leaving theircharges without adequate supervision.63 And when workers are sent homeearly after arranging care, they may nonetheless have to pay for that care

“underworking is usually related to economic hardship and often does not lead to better jobs inthe future”).

58 Lubin, supra note 4 (quoting a sales associate at clothing retailer Uniqlo). R59 Lambert, supra note 3, at 1204 (“For example, instability in work schedules can make it R

difficult to secure reliable child care and to establish family routines such as homework moni-toring and regular mealtimes.”); see also Henly, Shaefer, & Waxman, supra note 25, at 610 R(“Compared with working standard times, working at nonstandard times is linked to fewerhours spent in specific family activities such as eating meals together, homework supervision,and shared leisure time.”).

60 Henly, Shaefer & Waxman, supra note 25, at 610 (“For example, survey findings reveal Rthat working nonstandard hours is statistically significantly associated with work-family roleconflict, low marital quality and stability, and reduced time spent with children.” (citationsomitted)). Cf. Mark Tausig & Rudy Fenwick, Unbinding Time: Alternate Work Schedules andWork-Life Balance, 22(2) J. FAM. ECON. ISSUES 101, 103 (2001) (finding that greater stabilityin work hours improves work-life balance).

61 See Liz Watson & Jennifer E. Swanberg, Flexible Workplace Solutions for Low-WageHourly Workers: A Framework for A National Conversation, 3 AM. U. LAB. & EMP’T. L.F.380, 386 (2013); see also LUCE & FUJITA, supra note 2, at 13–14. R

62 Carre & Tilly, supra note 25, at 1. Moreover, workers who are called in to work hours Rbeyond their scheduled shifts often lose hours elsewhere, as employers seek to keep workers’total labor hours part-time or below the forty-hour overtime threshold. See Henly, Schaefer &Waxman, supra note 25, at 621 (“Given their poor economic circumstances, participants report Rthat additional hours are often welcomed. Some employees report, however, that extra hoursworked one day could result in shortened shifts on another. Employers thereby keep workerswithin the hourly range of part-time status or avoid the accumulation of overtime hours.”).

63 Though a last minute call-in can produce (desired) additional income, for the reasonsexplored in this Part, the uncertainty associated with unpredictable work schedules is problem-atic in and of itself.



even though they themselves are not earning wages. Unpredictable workschedules may also harm workers who are taking classes or enrolled in train-ing programs, as changing work shifts make regular class attendance ex-tremely difficult.64 Finally, unpredictability can present challenges forworkers who have limited transportation options, preventing them fromcarpooling and requiring them to rely on expensive last-minute options suchas taxis.65

In some ways, the problems that just-in-time scheduling causes for low-wage, hourly workers may be seen as corollaries to the problems with work-life balance experienced by upper-income professionals, a topic that has re-cently received much popular attention.66 Many commentators have sug-gested increased flexibility around work hours and schedules as a way toaddress the conflict between work and family obligations, particularly forprofessional women.67 Low-wage workers who experience the effects ofjust-in-time scheduling are subject to “flexibility,” but it is flexibility byfiat, imposed externally by their employers with little to no input by theworkers themselves. As Susan Lambert and Elaine Waxman have argued,this flexibility without control can be extremely harmful to workers: “With-out control, variations in work hours are better characterized as introducinginstability rather than flexibility into workers’ lives.”68

III. THE FAILURE OF THE FAIR LABOR STANDARDS ACT

Consider Jackie, the front desk clerk featured on Undercover Boss, whohad “no regularity” in her job, sometimes working from the early morninginto the afternoon, and sometimes from the afternoon until almost midnight.Consider also the Urban Outfitters worker quoted in the Introduction: heremployer would call her unexpectedly to work, “literally one hour” beforeshe had to report to the store.69 The same worker would sometimes arrive at

64 See Watson & Swanberg, supra note 61, at 386 & n.28. R65 See id.66 See, e.g., SHERYL SANDBERG, LEAN IN: WOMEN, WORK, AND THE WILL TO LEAD (2013);

Anne-Marie Slaughter, Why Women Still Can’t Have it All, THE ATLANTIC (Jun. 13, 2012),http://www.theatlantic.com/magazine/archive/2012/07/why-women-still-cant-have-it-all/309020, archived at http://perma.cc/F86P-66J7.

67 See, e.g., Slaughter, supra note 66 (proposing flexible work arrangements to improve Rwork-life balance). Pro-business lobbying efforts have also attempted to capitalize on the in-terest in flexibility to promote their desire to abolish overtime premium pay requirementsunder the FLSA. For example, the Working Families Flexibility Act of 2013 would allowemployers to pay their workers nothing extra for overtime work beyond a promise of compen-satory time that may only be used at the employers’ discretion. See H.R. 1406, 113th Cong.(2013). Although the bill passed the House, it ultimately died in committee in the Senate. SeeS. 1623, 113th Cong. (as reported by S. Comm. on Health, Education, Labor, and Pensions,Oct. 30, 2013).

68 Susan J. Lambert & Elaine Waxman, Organizational Stratification: Distributing Oppor-tunities for Work-Life Balance, in WORK AND LIFE INTEGRATION: ORGANIZATION, CULTURAL,AND INDIVIDUAL PERSPECTIVES 103, 115 (Ellen Ernst Kossek & Susan J. Lambert eds., 2005)(citation omitted).

69 Lubin, supra note 4. R



work, only to have her employer say, “I don’t need you,” and send herhome.70 The FLSA, the main guarantor of wage and hour rights for workers,provides no remedy for the instability introduced by these sorts of irregularcall-in and send-home practices.

While the work of American laborers has evolved over the last centuryin myriad ways, the FLSA has not undergone major revision since its enact-ment in 1938.71 The FLSA was “[p]assed as part of the New Deal legisla-tion of the early twentieth century” and “was enacted during a time whenworkers desired more leisure time away from their jobs but also wantedprotection from job insecurity and unemployment.”72 The impetus duringthis time period was to employ more people, to “spread the work” acrosssociety, but also to create a minimum set of worker-protective labor stan-dards.73 As President Roosevelt commented in support of the FLSA’s enact-ment, “[a] self-supporting and self-respecting democracy can plead no . . .economic reason for chiseling workers’ wages or stretching workers’hours.”74

Today, eight decades after its enactment, the FLSA remains the primarysource of wage protection for low-wage workers.75 The statute mandates aminimum hourly wage,76 requires premium overtime pay for work exceedingforty hours per workweek,77 prohibits child labor,78 and requires employersto keep accurate time records.79 Though some scholars have questionedwhether changes in the U.S. economy have rendered the FLSA obsolete,80

the fundamental principles that gave rise to the statute remain true today:regardless of the current economic climate, the intent of the law is both to

70 Id.71 The FLSA’s only substantive addition occurred in 1947 with the passage of the Portal-

to-Portal Act, Pub. L. No. 80-49, 61 Stat. 84 (1947) (codified as amended at 29 U.S.C.§§ 251–262 (2012)).

72 Ruan, supra note 25, at 2. R73 See Scott Miller, Revitalizing the FLSA, 19 HOFSTRA LAB. & EMP. L.J. 1, 2 (2001).74 Jonathan Grossman, Fair Labor Standards Act of 1938: Maximum Struggle for a Mini-

mum Wage, 101 MONTHLY LAB. REV. 22, 30 (1978) (quoting Franklin D. Roosevelt, Messageto Congress on Establishing Minimum Wages and Maximum Hours, 4 PUB. PAPERS 209–14(May 24, 1937)).

75 Numerous scholars on the subject of wage theft have recognized the FLSA as the mainsource of statutory authority utilized by low-wage workers to vindicate wage rights. See, e.g.,KIM BOBO, WAGE THEFT IN AMERICA 58 (2d ed. 2011); Brishen Rogers, Toward Third-PartyLiability for Wage Theft, 31 BERKELEY J. EMP. & LAB. L. 1, 1 (2010); Nantiya Ruan, What’sLeft to Remedy Wage Theft?: How Arbitration Mandates that Bar Class Actions Impact Low-Wage Workers, 2012 MICH. ST. L. REV. 1103, 1103–47 (2014).

76 29 U.S.C. § 206 (2012).77 Id. § 207(a)(1).78 Id. § 212.79 Id. § 211(c).80 Ruan, supra note 25, at 3 (“Workplace scholars have disputed and questioned the con- R

tinued viability of the FLSA, juxtaposing the need for employer flexibility, worker compensa-tory time, and the need to expand its protections to new categories of workers.”).



guarantee a living wage and to protect workers against the “evils ofoverwork.”81

Yet despite these goals, the FLSA exempts many types of low-wagework from its coverage. The FLSA’s minimum wage and overtime protec-tions cover only employers of a certain size — enterprises with gross annualsales of at least $500,000 — or whose employees engage in interstate com-merce.82 In addition, certain types of low-wage work are specifically ex-empted, including some home care workers, who are not covered by theminimum wage or overtime protections,83 live-in domestic workers, who arenot covered by overtime pay requirements,84 and many agricultural workers,who are also exempt from the overtime pay mandate.85

In addition, with narrow exceptions, the FLSA’s pay mandates applyonly to work actually performed.86 Workers who report for a scheduled shiftbut are then sent home receive no compensation under the FLSA, as theynever engaged in productive activity. Nor can workers receive compensa-tion under the FLSA for the disruption caused by their employers’ last min-ute calls to work.

In a narrowly drawn exception to this rule, courts have permitted someworkers who are “on call” or “engaged to wait” by their employers to col-lect compensation under the FLSA for their waiting time.87 Although the

81 Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 578 (1942) (canvassing theFLSA’s legislative history and identifying its objectives of protecting a “general maximumworking week,” ensuring “longer hours on the payment of time and a half for overtime,” andpreventing “the evil of overwork as well as underpay” (internal quotation marks omitted)).

82 29 U.S.C. § 203(s)(1) (2012).83 See id. § 213(a)(15) (exempting domestic workers providing “companionship services”

from the FLSA’s minimum wage and overtime guarantees); 29 C.F.R. § 552.6 (effective Jan. 1,2015) (interpreting “companionship services” to encompass the provision of both “fellow-ship,” such as engaging in conversation or activities, and “protection,” such as personalsupervision).

84 29 C.F.R. § 552.102 (2014).85 See 29 U.S.C. §§ 213(b)(12)–(16) (2012). See also Rebecca Smith & Catherine Ruck-

elshaus, Solutions, Not Scapegoats: Abating Sweatshop Conditions for All Low-Wage Workersas a Centerpiece of Immigration Reform, 10 N.Y.U. J. LEGIS. & PUB. POL’Y 555, 586 (2007).

86 The Supreme Court has held that in enacting the FLSA, Congress intended “to guaran-tee ei[t]her regular or overtime compensation for all actual work or employment. To hold thatan employer may validly compensate his employees for only a fraction of time consumed inactual labor would be inconsistent with the very purpose and structure of the Act.” Tenn. Coal,Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 597–98 (1944); see also 29 C.F.R.§ 778.223 (2014) (“Under the Act an employee must be compensated for all hours worked.”).Accordingly, courts have recognized that work “actually performed” should be paid to allworkers, including unauthorized workers. See, e.g., Lucas v. Jerusalem Cafe, LLC, 721 F.3d927, 937 (8th Cir. 2013) (holding that unauthorized workers may sue under the FLSA torecover statutory damages for “work actually performed”).

87 See Missouri, Kansas & Texas Ry. Co. v. United States, 231 U.S. 112, 119 (1913)(holding that inactive time counted in applying a federal act prohibiting the keeping of em-ployees on duty for more than sixteen consecutive hours). In answer to the argument that theemployees were not on duty during the period when they were waiting, the Court pointed outthat the employees were under orders, liable to be called upon at any moment, and not atliberty to leave, such that they were on duty when inactive—their duty being “to stand andwait.” Id.



FLSA was enacted in 1938, the Supreme Court recognized as early as 1913the principle that “inactive duty” may still constitute “duty.”88 Two seminalSupreme Court cases on the compensability of “on-call” time came in 1944,in Armour & Co. v. Wantock89 and Skidmore v. Swift & Co.,90 where theCourt held that neither the FLSA nor common law precluded waiting timefrom being counted as working time under the Act.91 Today, whether wait-ing time must be compensated under the FLSA depends upon the circum-stances of each particular case and is a question of fact to be resolved byappropriate findings of the trial court.92

In conducting this inquiry, courts consider a variety of factors, includ-ing the agreement between the parties, the restrictions placed on the workerby the employer, the degree to which the worker is free to engage in per-sonal matters during the waiting time, any requirement that the worker re-main on the employer’s premises or in a designated area, and, mostimportantly, whether the time spent waiting is predominantly for the em-ployer’s or the worker’s benefit.93

In a recent example, a hotel maintenance worker brought FLSA andNew York State wage claims for unpaid wages and overtime where theworker was required to be on call at the hotel many days and nights duringeach week.94 The worker was required to stay on the premises during the on-call time, and although he could socialize at the hotel while waiting for as-signments, the court found those facts insufficient to render the on-call time

88 See id.89 323 U.S. 126 (1944).90 323 U.S. 134 (1944).91 See Armour, 323 U.S. at 134; Skidmore, 323 U.S. at 136.92 Skidmore, 323 U.S. at 136–37 (“Whether in a concrete case [waiting] time falls within

. . . the Act is a question of fact to be resolved by appropriate findings of the trial court.”). Seealso FLSA Hours Worked Advisor: On-Call Time, U.S. DEP’T OF LABOR, http://www.dol.gov/elaws/esa/flsa/hoursworked/screenER80.asp (last visited July 24, 2013), archived at http://perma.cc/F97U-5YJY (“Whether hours spent on-call is hours worked is a question of fact to bedecided on a case-by-case basis. All on-call time is not hours worked.”). The Department ofLabor’s Wage and Hour Division has interpreted the FLSA’s requirement that an employeemust be compensated for “all hours worked” to require compensation for “(a) [a]ll timeduring which an employee is required to be on duty or to be on the employer’s premises or at aprescribed workplace”; and “(b) all time during which an employee is suffered or permitted towork[,] whether or not [the employee] is required to do so.” 29 C.F.R. § 778.223 (2014).Therefore, “working time is not limited to the hours spent in active productive labor, butincludes time given by the employee to the employer even though part of the time may bespent in idleness.” Id. State wage and hour laws follow similar contours. See, e.g., ARIZ.ADMIN. CODE § 20-5-1202 (2013) (“‘On duty’ means time spent working or waiting that theemployer controls and that the employee is not permitted to use for the employee’s ownpurpose.”).

93 See, e.g., Renfro v. Cty. of Emporia, 948 F.2d 1529, 1536 (10th Cir. 1991); Cent. Mo.Tel. Co. v. Conwell, 170 F.2d 641, 646 (8th Cir. 1948); Campbell v. Jones & Laughlin SteelCorp., 70 F. Supp. 996, 998 (W.D. Pa. 1947).

94 See Moon v. Kwon, 248 F. Supp. 2d 201, 229 (S.D.N.Y. 2002) (“Moon claims thatnearly all of the time spent at the hotel during the night-time hours is compensable, since hewas ‘never off duty’ and often slept in the basement near the boiler, which interrupted hissleep.”).



his own.95 Concluding that the worker’s waiting time was essentially work-ing time, the court awarded the worker over $350,000 in damages.96

Because “on-call” wage claims such as these are heavily fact-depen-dent, labeling particular types of waiting time as a priori compensable ornon-compensable is difficult. Nevertheless, three rough generalizations arepossible. First, workers who are regularly employed, and for whom on-callor standby time is inherent in the nature of their job, may be compensatedfor that time.97 For example, courts have deemed compensable the timespent “engaged to be waiting” by private firemen, private security guards,watchmen, and messengers, but these holdings are mostly from the 1940s,1950s, and 1960s.98 More recently, courts have been reluctant to compen-sate time spent waiting by public firemen and bus and truck drivers,99 andon-call or standby time spent by maintenance employees has been held to benon-compensable.100

Second, if a worker is regularly employed and forced to spend timewaiting due to unanticipated work stoppages, including mechanical andequipment breakdowns, that waiting time may be compensable.101 Third,workers employed on an irregular basis, such as on-call workers who volun-tarily report, and thereafter spend significant amounts of time waiting foractive work to become available, will not be compensated for that waitingtime.102

At first glance, this departure from the FLSA’s focus on compensationfor work actually performed would seem to open the door to claims byworkers who are called in or sent home from work unexpectedly. Indeed,many service workers in a just-in-time economy, who may be required toreport to work at a moment’s notice, are functionally “engaged to be wait-ing” under the compensability factors. For example, some retail workersreport having to “attend on-call shifts . . . in order to keep [their] job.”103

95 Id. at 230.96 Id. at 238.97 See, e.g., Elizabeth D. Feigin, Note, Achieving Justice for On-Call Workers: Amending

the Fair Labor Standards Act, 84 IOWA L. REV. 351, 352 (1999); Loren Schwartz, Comment,Reforming the Fair Labor Standards Act: Recognizing On-Call Time as a Distinct Category ofCompensable Work, 40 U.S.F. L. REV. 217, 224 (2005).

98 See Armour & Co. v. Wantock, 323 U.S. 126, 134 (1944) (holding private firefighters’waiting time, during which they were subject to the employer’s call and confined to the em-ployer’s premises, to be compensable); Loveday v. Camel Mfg. Co., 326 F. Supp. 1388, 1388(E.D. Tenn. 1970) (holding night watchman’s meal break, during which he was “subject to callby the employer,” to be compensable); Walling v. Allied Messenger Serv., Inc., 47 F. Supp.773, 779 (S.D.N.Y. 1942) (“Time spent by defendants’ messenger employees in waiting forcalls is time worked and must be compensated for according to the provisions of the Act.”).

99 E.g., Largent v. E. Ala. Water, Sewer, & Fire Prot. Dist., 330 F. Supp. 2d 1252, 1264(M.D. Ala. 2004).

100 See Cannon v. Vineland Hous. Auth., 627 F. Supp. 2d 171, 176–80 (D.N.J. 2008).101 See, e.g., Wirtz v. Sullivan, 326 F.2d 946, 948–49 (5th Cir. 1964) (holding that time

sawmill employees spent waiting during breakdowns at mill were compensable).102 See Irwin v. Clark, 400 F.2d 882, 883–84 (9th Cir. 1968).103 Freleng, supra note 12. R



Short time windows for reporting to work, such as the one-hour advancenotice described by the Urban Outfitters worker above, also impede aworker’s ability to make her leisure time her own.

However, courts’ on-call determinations thus far have not addressedservice workers subject to just-in-time scheduling practices. And given thelimitations that courts have placed on the compensability of on-call waitingtime over the last several decades, the likelihood that courts will begin tocompensate low-wage workers for the instability caused by unexpected call-ins and send-homes is slim.104 As one commentator has observed, “underthe [FLSA], even in extraordinary circumstances, courts do not generallyaward compensation for time spent on call.”105 Winning on-call pay wouldlikely be particularly difficult for hourly service workers who are subject tolast minute call-in practices because many of them are never formally placedon on-call or standby status.106 As a result, there is never a clear set ofrestrictions placed on their time and location of the sort that courts recognizeas indicators of compensable on-call time.107 Instead, workers are broadlyexpected to make themselves generally available for a last minute call-in towork in order to keep their jobs.108

Whereas the FLSA offers no remedy to workers like Jackie and theUrban Outfitters employee, two other sources may provide a legal remedy:contractual guaranteed-pay provisions under unions’ CBAs and states’ guar-anteed-pay laws. States and localities can go above the FLSA “floor” inproviding additional protections,109 while unions are free to seek more

104 See, e.g., Feigin, supra note 97, at 355 (“While on-call employees must conform to the Rrestrictions contained in their employer’s on-call policy, these restrictions do not generallyamount to compensable ‘work’ under the FLSA”). Part V, infra, discusses a different possibleinterpretation of the FLSA’s on-call analysis to bring workers subject to call-in practices withinthe ambit of the statute.

105 Feigin, supra note 97, at 351. R106 See Lambert, supra note 3, at 1217 (describing how many workers were expected to be R

available “at virtually any time of the day or night” and “would need to prepare for sevendays of work, just in case”).

107 Cf., e.g., Renfro v. Cty. of Emporia, 948 F.2d 1529, 1536 (10th Cir. 1991); Cent. Mo.Tel. Co. v. Conwell, 170 F.2d 641, 646 (8th Cir. 1948); Campbell v. Jones & Laughlin SteelCorp., 70 F. Supp. 996, 998 (W.D. Pa. 1947).

108 See Lambert, supra note 3, at 1217 (describing employers’ expectation of “open availa- Rbility”); see also Lai & Baum, supra note 26, at 88 (describing restaurant policy that condi- Rtioned waitstaff’s employment on workers’ open availability for unexpected call-ins).

109 The FLSA expressly states that it does not preempt state or local laws granting broaderminimum or overtime wage rights. 29 U.S.C. § 218(a) (2012); see also 29 C.F.R. § 778.5(2014). Additional wage rights provided by some states include (1) a minimum wage ratehigher than that of the FLSA (see U.S. DEP’T OF LABOR, WAGE AND HOUR DIV., MinimumWage Laws in the States (Jan. 1, 2015), http://www.dol.gov/whd/minwage/america.htm,archived at http://perma.cc/47VR-4NA7 (mapping states with minimum wage rates higherthan the federal level)); (2) “daily” overtime for long work days (e.g., CAL. LAB. CODE

§ 510(a) (2013) (requiring compensation at overtime rate for each hour over eight worked in aday)); (3) “spread of hours” pay, such as one extra hour’s minimum wage for each day of tenor more work hours (e.g., N.Y. COMP. CODES R. & REGS. tit. 12, § 142-2.4 (2013)); and (4)statutory damages and/or attorney’s fees for any unpaid wages (e.g., R.I. GEN. LAWS § 28-14-19.2 (2013) (allowing workers and their representatives “aggrieved by the failure to pay



worker-protective terms of employment as part of their contractual collectivebargaining agreements. The following Part examines guaranteed-pay provi-sions in CBAs and state statutes and regulations as written and as imple-mented in decisions by labor arbitrators, the National Labor Relations Board(“the Board”), and the courts.110 It considers the protections’ coverage, ex-ceptions, and exemptions. The subsequent Part examines the effectivenessof guaranteed-pay provisions in stabilizing low-wage work in today’s just-in-time economy.111

IV. REGULATING WORK HOURS THROUGH UNION CONTRACTS

AND STATE LAWS

Guaranteed-pay protections in both union contracts and state laws fallinto two categories: call-in pay (also known as call-back pay) and send-home pay (also known as reporting or show-up pay). Call-in protectionsrequire a minimum number of hours of pay for workers who are called totheir jobs during times when they are not otherwise scheduled to work.Workers who are called in are paid either for their actual number of hoursworked or the guaranteed minimum, whichever is greater. Similarly, send-home provisions require a minimum number of hours of pay for workerswho appear for a scheduled shift but are then sent home early. Again, work-ers are entitled to pay for the greater of their actual hours worked or thestatutory, regulatory, or contractual minimum.

Both types of guaranteed-pay provisions protect workers’ expectationsabout their labor hours: “A call-in pay clause protects the employee’s expec-tation that leisure time will be available during off-duty hours. A send-home

wages” to collect back pay, compensatory damages, liquidated damages at an amount twiceback pay, equitable relief, and attorneys’ fees and costs).

110 Disputes arising under collective bargaining agreements can be resolved by a variety ofadjudicators: labor arbitrators, Administrative Law Judges working under the auspices of theNational Labor Relations Board, and federal courts. See Unfair Labor Practice Process Chart,NAT’L LABOR RELATIONS BD., http://nlrb.gov/sites/default/files/attachments/basic-page/node-3339/process-1.png (last visited Oct. 4, 2014), archived at http://perma.cc/6L4A-YLKT.

111 Part IV, infra, does not address other possible sources of call-in and send-home protec-tion, including individually negotiated employment contracts (sometimes called employmentor wage agreements), minimum-pay guarantees voluntarily provided by employers, or argu-ments made under theories of quasi-contract or promissory estoppel. Though individualizedcontracts and voluntary-pay guarantees may provide workers protection against unpredictablework hour fluctuations and income instability, they are not readily accessible for analysis.Moreover, although workers might bring a quasi-contract or promissory estoppel suit to en-force an employer’s promises about work hours or scheduling, unless they possess a writtenemployment contract with minimum-hours guarantees (a rarity in low-wage, non-union work-places), such a claim would likely be difficult to win. See, e.g., Ayers v. Marsh & McLennanCos., No. 2:03-2239, 2004 U.S. Dist. LEXIS 29103, at *6–7 (S.D. W. Va. Dec. 30, 2004)(describing a worker’s burden in such circumstances as “heavy”). In addition, the discussionin Part IV is confined to non-salaried, hourly-paid employees. Although salaried workers maysuffer some of the same challenges as do hourly workers due to unpredictable work schedules(giving rise, in part, to the work-life flexibility debates mentioned in supra Part II), they tendnot to be covered by the call-in and send-home pay protections addressed by this Article. Seeinfra notes 133–138 and accompanying text. R



pay clause protects the employee’s expectation that work will be availableduring regularly scheduled hours.”112 Because employers’ last minute call-inand send-home practices disrupt these expectations, “[g]uaranteed pay pro-visions were demanded by unions [and passed into law by the states] toredress the unfairness of this uncertainty.”113 By establishing minimum payrequirements, guaranteed-pay protections also create a disincentive for cost-minimizing employers to manipulate workers’ hours in response to changingcustomer demand.

A. Call-In Pay

Call-in pay protections began to appear in union contracts as early as1939.114 In a 1969 decision, the Second Circuit characterized them as amongthe “most fundamental terms and conditions of employment.”115 Today,they are extremely common union contract terms. Among states, almost halfhave passed laws that provide for some form of call-in pay, some as early as1966.116

The call-in pay provisions of union contracts require payment of a setnumber of hours at either the worker’s regular pay rate or a premium rate,depending on the contract. For example, one union contract’s call-in payrequirement mandates that:

Any employees called from home or while away from their jobsfor special or emergency duty between shifts shall be compensated

112 Abrams & Nolan, supra note 21, at 895; id. at 872 (characterizing call-in pay as “re- Rpresent[ing] . . . the price of availability outside the employee’s regular shift” (citation andinternal quotation marks omitted)).

113 Id. at 869.114 Reuther, supra note 23, at 73. R115 NLRB v. Patent Trader, Inc., 415 F.2d 190, 198 (2d Cir. 1969).116 New York’s call-in pay law was first enacted in 1966. See N.Y. COMP. CODES R. &

REGS. tit. 12, § 142-2.3 (2013). Appendix Table 1 provides a complete listing of state call-inpay laws. Statutes or regulations in twenty states and the District of Columbia require someform of call-in pay. Montana and New Mexico are also listed in Table 1, but call-in compensa-tion in those states is paid only where an underlying employment agreement requiring call-inpay exists between the employee and employer (Montana), or where authorized by individualstate agencies for state employees (New Mexico). In addition, certain federal executive branchemployees are entitled to call-in pay. See 5 C.F.R. § 550.112(h) (2015) (“Irregular or occa-sional overtime work performed by an employee on a day when work was not scheduled forhim, or for which he is required to return to his place of employment, is deemed at least 2hours in duration for the purpose of premium pay, either in money or compensatory timeoff.”); id. § 550.101 (2015) (covered and exempted employees). Finally, some local ordi-nances provide for call-in or send-home pay for certain municipal workers. See, e.g., Colum-bus, Ohio, Management Compensation Plan, Attachment to Ordinance 2713-2013 § 7(D)(1)–(2) (Dec. 1, 2014), available at http://columbus.gov/WorkArea/DownloadAsset.aspx?id=66622, archived at http://perma.cc/U7A2-Y7FA (requiring three hours of “report-in pay” andeither two or four hours of “call-in pay,” depending on the circumstances, for certain munici-pal workers).



for a minimum of (2) hours time, which compensation shall be atthe applicable overtime rate.117

Similarly, a contract between Verizon New York and the CommunicationsWorkers of America requires that the company pay “one-half day’s pay at[the] basic hourly wage rate” when a worker is “required to report . . . forwork on a non-scheduled day.”118

States’ call-in pay laws generally follow these same contours, requiringa designated number of hours of pay for covered workers who are sum-moned to work during non-scheduled times. On one end of the spectrum,Delaware provides robust protection, requiring four hours of call-in pay atthe regular hourly rate.119 Similarly, Connecticut requires four hours ofstraight pay when workers in certain industries are unexpectedly called intowork,120 and New York requires the lesser of four hours or the number ofhours in a regular shift, paid at the state minimum wage.121 Other statesprovide for three hours,122 and the majority of states require two hours ofguaranteed pay, some at the regular hourly rate, and others at the premiumtime-and-a-half overtime rate.123 At the bottom end of the scale, two statesprovides one hour of guaranteed pay: New Jersey and Maryland.124 Finally,some state laws do not create specific hours guarantees, but instead leave thedecision up to individual employers’ determinations,125 or provide only forcalled-in workers’ travel time, rather than a set number of hours.126

117 Agreement Between Amalgamated Sugar Co. and Local Unions Nos. 282G, 283G,284G & 290G, Bakery, Confectionary, Tobacco Workers & Grain Millers Int’l Union, art.5.5(a) (Aug. 1, 2000), available at http://www.irle.berkeley.edu/library/pdf/0012.pdf, archivedat http://perma.cc/2MR8-B6T5.

118 Agreement Between Verizon New York, Inc., et al. and Commc’ns Workers of Am.,art. 19.09 (Aug. 6, 2000), available at http://www.irle.berkeley.edu/library/pdf/0172.pdf,archived at http://perma.cc/X4Z9-QMLG.

119 19 DEL. ADMIN. CODE § 3001-5.16.1 (2013).120 See, e.g., CONN. AGENCIES REGS. § 31-62-D2(d) (2014) (providing for four hours of

call-in pay for workers in mercantile trade).121 See N.Y. COMP. CODES R. & REGS. tit. 12, § 142-2.3 (2013).122 E.g., MICH. CIVIL SERV. R. 5-4.4(b) (2013); N.H. CODE ADMIN. R. ANN. PER. 903.06

(2013).123 Compare, e.g., ARK. CODE ANN. § 21-5-221(k)(3)(C)(i) (West 2013) (two hours at

regular rate) with NEV. ADMIN. CODE § 284.214(1) (2013) (two hours at premium overtimerate).

124 See N.J. ADMIN. CODE § 12:56-5.5(a) (2013) (one hour at regular rate); MD. CODE

REGS. 17.04.02.12(A) (2013) (requiring one hour of call-in pay plus travel time).125 E.g., 25 N.C. ADMIN. CODE 1.D.1504(a) (2013) (Office of State Human Resources

determines on-call or emergency callback compensation based on prevailing practices in theapplicable labor market); cf. N.M. CODE R. §1.7.4.15(B) (LexisNexis 2014) (permitting stateagency to establish a minimum number of call-in pay hours “in accordance with [its]policy”).

126 ILL. ADMIN. CODE tit. 56, § 210.110 (2013) (providing, as an example of compensabletime, an employee’s travel time when she must report “in response to an emergency call backto work outside . . . her normal work hours”); OR. ADMIN. R. 839-020-0045(2) (2013) (requir-ing compensation for travel time “spent in excess of time spent in normal home-to-worktravel” when an employee “has left the employer’s premises or job site after completing the



Interpretation of CBA and state law call-in pay provisions varies acrosscourts, the Board, and labor arbitrators. Adjudicators have reached differingconclusions, for example, on the threshold issue of what counts as being“called in” to work. Interpreting union contracts, some arbitrators have de-cided that workers who clock out, but are then required to stay on the em-ployer’s premises to complete additional work, count as being “called in,”while others require that workers physically leave the work site and thenreturn.127 Similarly, Delaware and Maryland’s laws apply only when aworker has physically left the work site and then returned pursuant to a call-in.128 Location also matters with respect to work performed remotely: BothNevada’s call-in pay law and some labor adjudicators have adopted a bright-line rule excluding work that a “called-in” employee performs fromhome.129 Finally, in order for a call-in provision to apply, workers need actu-ally to accept their employer’s call to work. An employer’s call alone, evenif it is quite disruptive, does not trigger a call-in pay requirement if theworker declines to report.130

When a worker is properly called back to the employer’s premises,however, adjudicators are often quite generous in granting call-in pay. Forexample, arbitrators in labor disputes have held that workers called in toparticipate in disciplinary investigations or to provide testimony in court areentitled to call-in pay, even though they did not actually perform anywork.131

day’s work and is subsequently called out to travel [a distance of at least thirty miles from heremployer’s place of business] to perform an emergency job”).

127 See Fyfe v. City of Fort Wayne, 241 F.3d 597, 600 n.2 (7th Cir. 2001) (“It is unclearwhy Zettle received ‘call in’ pay instead of the regular overtime rate of time and one-half. ‘Callin’ pay, as we read the collective bargaining agreement, is required only when an employee iscalled to work by supervisors at a time when he or she is not otherwise scheduled to work. AsFyfe points out, there is no evidence that Zettle was called to work from home, as opposed tomerely staying at work at the end of her shift to complete the spraying.”). Compare, e.g.,Joseph T. Ryerson & Sons, 97 Lab. Arb. Rep. (BNA) 1187, 1188 (1991) (Imundo, Arb.)(awarding call-in pay to worker who had remained on the premises after clocking out to com-plete work at his employer’s request because the employer’s “request was an imposition on[the worker’s] personal time whether or not he had left plant”), with Gen. Am. Transp. Corp.,73 Lab. Arb. Rep. (BNA) 478, 480 (1979) (Caraway, Arb.) (deciding that “where the em-ployee [wa]s physically present on the Company’s premises” when he was called back towork, he could not demand four hours of call-in pay, but was limited to pay for the thirtyminutes he actually worked).

128 19 DEL. ADMIN. CODE § 3001-5.16.1 (2013); MD. CODE REGS. 17.04.02.12(A) (2013).129 NEV. ADMIN. CODE § 284.214(2)(e) (2013); e.g., Dep’t of Veterans Affairs, 114 Lab.

Arb. Rep. (BNA) 1665, 1669 (2000) (Benedetto, Arb.).130 See Sw. Gas Corp., 119 Lab. Arb. Rep. (BNA) 1284, 1288 (2004) (Bognanno, Arb.)

(holding that a service technician for a gas company who was called at 5:00 AM for an un-scheduled shift, but refused, “was not assigned work, nor was his time otherwise restricted bythe Company,” meriting no call-in pay).

131 Mobil Oil Corp., 76 Lab. Arb. Rep. (BNA) 3, 6 (1981) (Allen, Arb.); see also Cnty. ofSomerset, 126 Lab. Arb. Rep. (BNA) 1219, 1225 (2009) (Miles, Arb.) (awarding four hours ofcall-in pay to correctional officers subpoenaed to testify in legal proceedings where testimonywas considered part of officers’ jobs).



Whereas union contracts apply to all workers in a particular bargainingunit,132 many states’ call-in pay laws contain significant carve-outs and ex-ceptions that exempt many categories of workers from coverage. A largemajority of state call-in pay laws apply only to state civil service employ-ees,133 and Connecticut’s law limits coverage to two specific industries.134

Further, some states allow call-in pay only for those employees who arealready held in an “on-call” or “standby” status by their employers.135 Ne-vada’s call-in regulation, however, takes the opposite approach, explicitlyexcluding any “[e]mployee who is called into work while on standby sta-tus,”136 as do the regulations of four other states.137 Finally, some states’ call-in pay laws apply only to those workers who also qualify for overtime underthe FLSA, while some also allow overtime-exempt employees to collectcall-in pay with approval by employers.138

In addition to carving out certain categories of workers, state call-in paylaws contain a grab bag of other exemptions. Nevada denies call-in pay toworkers who are asked to report within an hour of their shift’s normal starttime, or if the time for beginning call-in work is set at the employee’s re-quest.139 New Jersey exempts employers that have already given a worker“the minimum number of hours of work agreed upon” before the day of thecall-in.140 Oklahoma allows employers to issue “compensatory time in lieuof cash payment.”141

132 More specifically, a CBA applies to all workers in a particular “bargaining unit,”whether or not a given worker has actually joined the union. See Commc’ns Workers of Am.v. Beck, 487 U.S. 735, 739 (1988) (“[T]he union is empowered to bargain collectively withthe employer on behalf of all employees in the bargaining unit over wages, hours, and otherterms and conditions of employment . . . .”).

133 See generally Appendix Tables 1 & 2. Other states require call-in pay for subcatego-ries of state workers, such as public university employees. See, e.g., UNIV. OF MINN. CIVIL

SERV. EMP’T R. 10.5.1–.4, available at http://www1.umn.edu/ohr/policies/governing/civilrules/rule10 (last modified Feb. 23, 2012), archived at http://perma.cc/KM2K-4FKH (requiring twohours of call-in pay at overtime rate). Because these kinds of call-in pay guarantees apply torelatively small groups of workers, Appendix Tables 1 & 2 do not include them.

134 See CONN. AGENCIES REGS. § 31-62-D2(d), -E1(b) (2014) (providing for two or fourhours of call-in pay for workers in mercantile trade and restaurant occupations, respectively).

135 E.g., ARK. CODE ANN. § 21-5-221(m)(3)(C)(i) (West 2013); D.C. MUN. REGS. tit. 6§ 1137.6 (2013); OKLA. STAT. § 74-840-2.29 (2013); OKLA. ADMIN. CODE § 260:25-7-16(2014). North Carolina’s law applies to state employees on on-call or emergency callbackstatus, but the Office of State Human Resources determines the number of guaranteed hoursbased on “prevailing practices in the applicable labor market.” 25 N.C. ADMIN. CODE

1.D.1504(a) (2013).136 NEV. ADMIN. CODE § 284.214(2)(a) (2013).137 CAL. CODE REGS. tit. 8, §§ 11010–11150 (subd. 5(D) of each section) (2013); KAN.

ADMIN. REGS. § 1-5-25 (2013); MICH. CIVIL SERV. R. 5-4.4(a) (2013); WASH. ADMIN. CODE

§ 357-28-185(2) (2013).138 Compare, e.g., 19 DEL. ADMIN. CODE § 3001-5.16.1 (2013) (FLSA overtime-eligible

state employees) and WYO. COMP. POLICY CH. 4 § 7 (2010) (same), with 4 COLO. CODE REGS.§ 801-3-44 (LexisNexis 2013) (overtime-exempt state employees, when approved by depart-ment head).

139 NEV. ADMIN. CODE § 284.214(2)(f)(1)–(2) (2013).140 N.J. ADMIN. CODE § 12:56-5.5(b) (2013).141 OKLA. ADMIN. CODE § 260:25-7-16 (2014).



Thus, while call-in provisions in union contracts and state laws sharesome basic characteristics, the strength of any given call-in pay requirementdepends on the extent of its coverage and the breadth of its exceptions.Some provisions, such as Connecticut’s, have narrow coverage as writtenand as applied, extending protection only to certain industries or to certainsubcategories of workers.142 Others have generous coverage as written, butinclude exceptions that, as applied, may swallow the rule. Oklahoma’s sub-stitution of compensatory time for actual payment, for example, may under-mine the effectiveness of a call-in pay requirement in stabilizing low-wageworkers’ income, as compensatory time can be a poor substitute for actualpayment of wages.143

Interestingly, though CBA call-in pay provisions appear to be in activeuse by workers and employers, disputes arising under states’ call-in pay lawsare rarely litigated, and have generated very few published court decisions. The lack of case law could mean that employers are generally complyingwith the law and issuing call-in pay when required. A more likely explana-tion, however, is that these laws are underutilized and that call-in pay rightsare underenforced. This may be because call-in pay laws tend to apply ex-clusively to front-line, non-managerial, hourly-paid workers, a group thatoften lacks knowledge of its legal rights and faces barriers to becoming pri-vate rights enforcers.144 As Charlotte Alexander and Arthi Prasad havedemonstrated in their empirical work on workplace law enforcement, low-wage workers often have “gaps in [their] legal knowledge and powerfulincentives to stay silent in the face of workplace problems,”145 including awell-founded fear of retaliation and a belief that “their claim[s] would haveno effect.”146 Low-wage, hourly-paid service workers may not know aboutthe rights guaranteed by call-in pay statutes and regulations, or may fear theconsequences of enforcing those rights. Indeed, as one California court

142 CONN. AGENCIES REGS. § 31-62-D2(d), -E1(b) (2014) (applying only to workers inmercantile trade and restaurant occupations); 25 N.C. ADMIN. CODE 1.D.1504 (2013) (apply-ing only to state employees on on-call status, when approved by each agency’s personnel direc-tor and the state Office of State Personnel).

143 See Michael Z. Green, Unpaid Furloughs and Four-Day Work Weeks: Employer Sym-pathy or a Call for Collective Employee Action?, 42 CONN. L. REV. 1139, 1174 n.230 (2010)(explaining that a proposed amendment to the FLSA substituting compensatory time for over-time pay failed to win the support of Democrats and union officials “because it would [have]reduce[d] overtime pay and allow[ed] employers to coerce employees into accepting comptime and lost pay with little enforcement opportunities to protect against such coercion”);David J. Walsh, The FLSA Comp Time Controversy: Fostering Flexibility or DiminishingWorker Rights?, 20 BERKELEY J. EMP. & LAB. L. 74, 136 (1999) (“[P]rivate sector comp timereveals itself to be a change that is far more in the interests of employers . . . than those ofworkers. It represents a retreat from an entitlement to overtime pay and a step backward to-ward more individualized dealings between workers and their far more powerful employers.”).The call-in pay requirement for federal executive branch employees also allows substitution ofcompensatory time for pay. See 5 C.F.R. § 550.112 (2015).

144 Charlotte Alexander & Arthi Prasad, Bottom Up Workplace Law Enforcement: An Em-pirical Analysis, 89 IND. L.J. 1069, 1071–73 (2014).

145 Id. at 1072.146 Id. at 1073.



commented, “[I]t is difficult and daunting for employees to challenge alleg-edly unlawful practices. This is especially true of low-wage workers, whoare disproportionately affected by employers’ increasing demands for non-traditional hours of work.”147

Moreover, as discussed further in Part V, both the meager damagesavailable to plaintiffs (the few hours of lost pay) and the absence of attor-ney’s fee awards may provide little incentive for litigation of call-in paylawsuits. Regardless of the extent of a call-in law’s coverage, therefore,questions of enforcement may ultimately determine the strength of the pro-tection it offers to workers who face unpredictable work hours and incomeinstability.

B. Send-Home Pay

Whereas call-in pay compensates workers whose expectation of leisuretime is interrupted by a return to work, send-home pay “protect employees. . . from the expense and inconvenience of reporting to work . . . who arethen later sent home without pay because work became unavailable.”148

Alongside this compensatory goal, courts have recognized send-home laws’“corollary purpose of shaping employer conduct,”149 noting the laws’ abilityto “encourage proper notice and scheduling” on the part of employers bypenalizing their use of just-in-time scheduling.150 Send-home pay require-ments have been included in union CBAs since at least as early as the1930s;151 they have been enacted into law in eight states and the District ofColumbia.152

Send-home pay requirements in collective bargaining agreements tendto range from two to eight hours, or sometimes a worker’s entire shift.153 As

147 Kamar v. Radioshack Corp., No. CV07-2252AHM (AJWx), 2008 U.S. Dist. LEXIS40581, at *36–37 (C.D. Cal. May 15, 2008).

148 Nashua Young Women’s Christian Ass’n v. N.H. Dep’t of Labor, 597 A.2d 535, 537(N.H. 1991) (discussing the compensatory purpose of state send-home pay law).

149 Securitas Sec. Servs. USA, Inc. v. Superior Court, 127 Cal. Rptr. 3d 883, 888 (Cal. Ct.App. 2011) (quoting Murphy v. Kenneth Cole Prods., Inc. 155 P.3d 284, 295 (Cal. 2007)).

150 Murphy, 155 P.3d at 295 (quoting Cal. Mfrs. Ass’n v. Indus. Welfare Comm’n, 167 Cal.Rptr. 203, 213 (Cal. Ct. App. 1980)); see also Price v. Starbucks Corp., 122 Cal. Rptr. 3d 174,182 (Cal. Ct. App. 2011) (“The reporting time regulation protects an employee from losing allpay because of scheduling errors.”).

151 Reuther, supra note 23, at 73. R152 See Appendix Table 2 for the full list of state send-home pay laws. Montana is listed

as a ninth send-home pay state, but its regulatory language only takes effect where an underly-ing employment agreement requiring send-home pay exists between the employee andemployer.

153 See, e.g., New England Joint Bd. Retail v. Decatur & Hopkins Co., 677 F. Supp. 657,658 (D. Mass. 1987) (quoting CBA that required eight hours of send-home pay regardless ofscheduled shift length); Ich Corp., 2000 N.L.R.B. LEXIS 550 at *40 (2000) (discussing CBAthat required “show up pay for an entire shift where an employee is sent home soon afterarrival”); Agreement Between Bethlehem Steel Corp. and United Steelworkers of Am., art.VII § 7 (Aug. 1, 1999), available at http://www.irle.berkeley.edu/library/pdf/0051.pdf,archived at http://perma.cc/JL43-C75A (requiring a minimum payment of four hours of pay at



with call-in pay, workers who qualify receive the guaranteed block of hours,regardless of their actual hours worked. If they do not qualify for the guar-antee, they do not receive any compensation for the disruption and insteadare paid at their straight or overtime rate, whichever is applicable, for onlytheir actual hours worked.

State laws also provide varying send-home pay guarantees. In Califor-nia, the most generous state, workers must receive work for at least half ofthe hours for which they are scheduled, or are entitled to their full shift’s pay,amounting to no more than four and no fewer than two hours.154 Other statesmandate between two and four hours of send-home pay, and some requirethat a worker first be scheduled for a shift of a certain length in order tobecome eligible for send-home pay.155 As with call-in pay, New Jersey’ssend-home pay law is among the least generous, requiring only one hour ofpay.156 Finally, Oregon’s law, which applies only to minors, requires that aworker be provided enough work hours to earn at least half the amount thatshe would have earned had she been given her scheduled number of hours.157

In adjudicating send-home pay disputes, courts, the Board, and laborarbitrators must first decide what counts as “reporting” to work, the triggerfor the send-home pay requirement.158 As in the call-in pay inquiry, locationmatters. Labor adjudicators have found that workers who are merely heldover from a previous shift for extra work, and then sent home earlier thanexpected, cannot claim send-home pay, as they never “reported” for work inthe first place.159

In addition to location, adjudicators consider a variety of other factorsin determining whether workers have properly “reported.” For example, inconsidering whether to award send-home pay to a worker who had reportedfor his shift wearing street clothes, attended a safety meeting, and then gonehome early, a court asked: “[What was] the custom and practice of the . . .

applicable regular rate “[i]f an Employee shall be required by the Management to report forwork on any day and he shall report at the time and place at which he was required so toreport”); Amalgamated Sugar Co. Agreement, supra note 117, at art. 5.4 (“An employee Rcalled to and reporting for work on his regular shift (unless otherwise instructed) shall be giventwo (2) hours work, or in lieu of being given that much work, shall be given pay equivalent tothe amount he would have received had he worked the two (2) hours.”).

154 CAL. CODE REGS. tit. 8, §§ 11010–11150 (subd. 5(A) of each section) (2013).155 CONN. AGENCIES REGS. § 31-62-D2(d), -E1(b) (2014) (four hours for workers in mer-

cantile trade and two hours for workers in restaurant and hotel occupations, respectively); D.C.CODE MUN. REGS. tit. 7, § 907.1 (2013) (fewer of either four hours or the number of hours inemployee’s scheduled shift); N.Y. COMP. CODES R. & REGS. tit. 12, § 142-2.3 (2013) (same);455 MASS. CODE REGS. 2.03(1) (2013) (three hours if employee scheduled for shift of at leastthree hours); R.I. GEN. LAWS § 28-12-3.2 (2013) (three hours); N.H. REV. STAT. ANN.§ 275:43-a (2013) (two hours).

156 See N.J. ADMIN. CODE § 12:56-5.5(a) (2013).157 OR. ADMIN. R. 839-021-0087(5) (2013).158 Abrams & Nolan, supra note 21, at 877 (“As might appear obvious, in order to qualify R

for reporting pay an employee must actually report for work. Reporting is ‘a condition prece-dent to compensation.’” (quoting Hamilton Press, Inc., 65 Lab. Arb. Rep. (BNA) 274, 275(1975) (Belshaw, Arb.)).

159 E.g., Sandia Nat’l Labs., 123 Lab. Arb. Rep. (BNA) 779, 782 (2006) (Hoose, Arb.).



facility. For example, what was [the plaintiff’s] usual attire at work? Whatwas the customary dress for those attending safety meetings? What does‘report to work’ mean? Did [the plaintiff] refuse to start work or stop workof his own volition?”160

Even if a worker properly “reports” to work before being sent home,both state laws and contractual send-home pay guarantees commonly in-clude exceptions and exemptions that relieve employers of their obligationto pay. These include notice, where the employer informs the worker thather shift is cancelled before she arrives at work; events outside the em-ployer’s control that necessitate an early send-home; and a worker’s reassign-ment to other work for the duration of her shift or, in the alternative,volunteering to leave and waiving her entitlement to reporting pay.

The first exception, notice, receives widely varying contractual, regula-tory, and statutory treatment.161 At one extreme, employers are merely re-quired to use “good faith” or “reasonable” efforts to inform workers of ashift cancellation.162 These provisions do not require actual notice to work-ers, but instead focus on the efforts made by the employer. At the otherextreme, contracts require actual notice to the worker within a designatedtime prior to the shift’s beginning, or specify in great detail the length andmanner of the advance notice.163 For example, Oregon’s send-home pay lawmandates a specific procedure for issuing notice, requiring employers to for-mulate a notice policy, post it at the work site, inform minor workers of the

160 Arnold v. Cabot Corp., No. 1:99CV75, 2000 U.S. Dist. LEXIS 7709, at *5–6 (N.D. W.Va. May 8, 2000).

161 Abrams & Nolan, supra note 21, at 892 (“Many reporting pay provisions make refer- Rence to the issue of notice. Some of these clauses expressly oblige management to notifyemployees of the lack of work. Others excuse payment of the guarantee when managementhas used reasonable means to notify employees not to report. Still other clauses excuse theguarantee only if employees have received actual notice not to report. An arbitrator must readand apply the particular notification requirement or notice excuse adopted by the parties inorder to resolve their reporting pay dispute.”).

162 See, e.g., N.H. REV. STAT. ANN. § 275:43-a (2013) (requiring a “good faith effort” tonotify workers not to report to work); Agreement Between Ass’n of Bituminous Contractorsand United Mine Workers of Am., art. 8(b) (Feb. 7, 2002), available at http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1795&context=blscontracts, archived at http://perma.cc/RV8V-MBXA (“Notification of employees not to report means reasonable efforts bymanagement to communicate with the employee.”).

163 E.g., Agreement Between Local Union No. 631, Associated Gen. Contractors Ass’nand Int’l Bhd. of Teamsters, art. XII(E)(1) (July 1, 2004), available at http://digitalcom-mons.ilr.cornell.edu/cgi/viewcontent.cgi?article=2145&context=blscontracts, archived athttp://perma.cc/6Z96-7NDE (requiring payment of two hours of send-home pay “unless [theworker] has been notified before the end of the last preceding shift not to report”); AgreementBetween Kelly-Springfield Tire Co. Freeport Plant and Local Union No. 745, United Steel-workers of Am.; art. V(2)(b) & (d) (Apr. 7, 2004), available at http://digitalcom-mons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1122&context=blscontracts, archived athttp://perma.cc/V3PW-W5MX (allowing notice to be communicated via “verbal instruction tothe employee”; a notice posting and notification to the Department Steward “at least one hourprior to the end of the last shift scheduled for the employees involved”; via “[t]elephonenotification to an employee prior to the time he normally leaves home for work”; or via an-nouncement on five specifically listed radio stations).



policy on their first day of work, and execute the policy in the event of acancellation “so as to give the minor notice before the minor must leavehome to travel to work.”164 Some provisions also allow for notice by proxy,deeming sufficient notice given to a worker representative.165

Though these notice provisions do not explicitly regulate employers’scheduling practices, they do so indirectly. The more onerous a notice pro-vision is — the harder it is for an employer to give sufficient notice in orderto escape send-home pay obligations — the more careful an employer mightbe in setting workers’ schedules. The more lenient a notice provision, themore likely an employer might be to play fast and loose with scheduling andchange a worker’s shift at the last minute. If, for example, an employer isexempted from send-home pay requirements merely by making a good faithor reasonable effort to notify a worker of a cancelled shift, or simply bymaking a radio announcement, then the employer may be more willing tocancel shifts unexpectedly. These lenient notice provisions may underminethe effectiveness and deterrent power of send-home pay guarantees.

The second set of send-home pay exemptions and exceptions focuseson the reasons that workers are sent home.166 These exceptions apply whenworkers report to work, but their labor is not needed for reasons that areoutside the employer’s control. As labor law scholars Roger Abrams andDennis Nolan put it, “[p]arties to a collective bargaining agreement [andstate send-home pay laws] generally recognize these unusual situations —where it cannot be said that the employer mismanaged the scheduling ofwork — by including express exceptions to the send-home pay clause.”167

Common exceptions in both CBAs and state laws include work stoppagesand labor disputes, storms, flooding, fire, power or utility outages, unfore-seeable machinery breakdown, and other “acts of God.”168

Because the exempting event must be beyond the employer’s control,the question of control has been the subject of dispute, and influences em-ployers’ operational decisions. For example, an employer may not claim anexception to a send-home pay requirement if workers are sent home due to

164 OR. ADMIN. R. 839-021-0087(6)(d) (2013).165 See, e.g., Agreement Between Brown & Williamson Tobacco Corp. and Local Union

No. 362-T, Bakery, Confectionary, Tobacco Workers & Grain Millers Int’l Union , art. XXIV(Sept. 1, 1996), available at http://www.irle.berkeley.edu/library/pdf/0226.pdf, archived athttp://perma.cc/JL3C-7DZA (“Notification through bulletin board notices or through theGroupLeader [sic] shall be deemed sufficient[.]”).

166 See Abrams & Nolan, supra note 21, at 879. R167 Id. at 871.168 See, e.g., CAL. CODE REGS. tit. 8, §§ 11010–11150 (subd. 5(C) of each section) (2013)

(listing various exempting circumstances, including threats to people or property at the worksite, utility failures, and acts of God); OR. ADMIN. R. 839-021-0087(7) (2013) (listing, asexempting circumstances, snowstorms, flooding, power outages, and unforeseeable equipmentfailures); Bethlehem Steel Agreement, supra note 153, at art. 7 § 7(c) (relieving employer of Rsend-home pay obligation if work is unavailable “by reason of any strike or other stoppage ofwork in connection with any labor dispute or any failure of utilities beyond the control ofManagement or Act of God”).



electrical problems, where the employer had not had the electrical systeminspected in twelve years.169 Likewise, where an employer opted into a util-ity contract that warned that service interruptions might occur without no-tice, the employer could not claim such interruptions as a reason not toprovide send-home pay.170 Finally, an employer who sent workers homeearly due to bad weather, but had made no earlier attempts to learn theweather forecast, could not claim an exception to send-home pay rules.171

These sorts of limits on the send-home pay exception may influence employ-ers to proceed with prudence in making maintenance decisions, choosingsuppliers, and monitoring the weather — all in an attempt to preserve theirability to claim a send-home pay exception.

Third, some union contracts and state laws relieve an employer of send-home pay liability if the worker refuses to perform the assigned work,thereby creating a lack of work due to her own actions, rather than the em-ployer’s.172 Some union contracts also allow workers to “individually waive[the send-home pay] guarantee and leave work upon being released” ratherthan be transferred to other work for the duration of their scheduled shift.173

In addition to these three exceptions, like call-in pay entitlements, manystates’ send-home pay laws apply only to certain groups of workers. Con-necticut’s laws apply only to workers employed by mercantile establish-ments and restaurants.174 Massachusetts’ law does not apply to charitableorganizations, while New Hampshire’s law exempts employees of countiesand municipalities.175 Oregon’s law covers only minors, and California’s lawleaves out workers who are already on paid standby status.176

Unlike call-in pay laws, however, states’ statutory and regulatory send-home protections have generated some litigation, an indication that workers,or perhaps the plaintiffs’ employment bar, may be more aware of the rights

169 See Metalloy Corp., 109 Lab. Arb. Rep. (BNA) 1093, 1100 (1997) (Borland, Arb.).170 Indus. Alloys Inc., 116 Lab. Arb. Rep. (BNA) 1226, 1231 (2002) (Kaufman, Arb.).171 Thiokol Corp., 103 Lab. Arb. Rep. (BNA) 1025, 1031 (1994) (Goodstein, Arb.).172 E.g., Associated Gen. Contractors Ass’n Agreement, supra note 163, at art. XII(E)(3) R

(disqualifying workers from receiving reporting pay who “are not able to perform the job towhich they are referred because of their own lack of qualifications or for some other reasonwhich is the workman’s own responsibility”); CONN. AGENCIES REGS. § 31-62-E1(b) (2014)(“If the employee is either unwilling or unable to work the number of hours necessary toinsure the two-hour guarantee, a statement signed by the employee in support of this situationmust be on file as a part of the employer’s records.”).

173 Agreement Between Legacy Emanuel Hosp. & Health Ctr. and Local Union No. 49,Serv. Employees Int’l Union, art. 6.1 (July 1, 2011), available at http://www.seiu49.org/files/2011/09/2011_EmanuelContract.pdf, archived at http://perma.cc/7FUC-V4PW; see alsoKelly-Springfield Tire Co. Agreement, supra note 163, at art. V(2)(a) (“If the Company offers Rthe employee the choice of other work or going home and he elects to go home, he forfeits[the send-home pay guarantee].”).

174 CONN. AGENCIES REGS. § 31-62-D2(d), -E1(b) (2014).175 455 MASS. CODE REGS. 2.03(1) (2013); N.H. REV. STAT. ANN. § 275-43a (2013).176 OR. ADMIN. R. 839-021-0087 (2013); CAL. CODE REGS. tit. 8, §§ 11010–11150 (subd.

5(D) of each section) (2013).



conferred by these laws.177 Most of the lawsuits raise claims under Califor-nia’s send-home pay law, and most center on a single issue: the relevance tothe send-home pay inquiry of a worker’s expectation of the number of hoursshe will work on the day she is sent home.178 California’s send-home paylaw applies to any employee who is required to report for work and doesreport, but receives “less than half said employee’s usual or scheduled day’swork.”179 The application of the law hinges on the length of the employee’sscheduled shift that day or, as some courts have characterized it, “the em-ployee’s expectation of the hours in the customary workday.”180 Thesecourts have held that plaintiffs who reported work for meetings, rather thanfor normal productive activity, and then were sent home could not claimsend-home pay because they did not arrive at their job expecting to work.181

Thus, the legal remedies for the inadequate, variable, and unpredictablework hours caused by just-in-time scheduling are marked by variety. Theyvary in coverage across unions, workplaces, and states. They vary in theirexceptions and exemptions, and in the extent to which they are enforced viaunion grievance procedures and lawsuits. Within this variation, there arepockets of real protection for workers — for those who are in unions, or whowork in states with robust guarantees for both call-in and send-home pay —but there are also pockets of no protection, where workers bear the brunt ofemployers’ strategic risk-shifting. The final Part assesses this landscape,considering the ability of these legal remedies to create greater stability inlow-wage service work.

V. ASSESSMENT OF EFFECTIVENESS AND PROPOSALS FOR REFORM

The foregoing Parts have highlighted some shortcomings of CBAs’ andstates’ guaranteed-pay provisions: relatively narrow categories of workerswho receive protection; exceptions and exemptions that may swallow therule; possible problems with enforcement; and underuse, as indicated by thepaucity of court decisions arising under state laws.

177 One California decision addressed the question of whether that state’s send-home paylaw even permitted private lawsuits, and held that it did. See Kamar v. Radioshack Corp., No.CV07-2252AHM (AJWx), 2008 U.S. Dist. LEXIS 40581, at *36–37 (C.D. Cal. May 15,2008). In another California decision, a class of plaintiffs won class certification and a settle-ment of approximately $441,000 covering all servers who worked at Olive Garden restaurantswho were not paid proper reporting pay. See Alberto v. GMRI, Inc., No. Civ. 07-1895WB-SDAD, 2008 U.S. Dist. LEXIS 91691, at *20–21 (E.D. Cal. Nov. 12, 2008).

178 See, e.g., cases cited infra notes 180–181. R179 CAL. CODE REGS. tit. 8, §§ 11010–11150 (subd. 5(A) of each section) (2013).180 Price v. Starbucks Corp., 122 Cal. Rptr. 3d 174, 182 (Cal. Ct. App. 2011).181 Id.; Johnson v. Sky Chefs, Inc., No. 11-CV-05619-LHK, 2012 U.S. Dist. LEXIS

140760, at *20–21 (N.D. Cal. Sept. 27, 2012) (“Plaintiff here, like the plaintiff in Price, hasmade no allegations that she was scheduled to work or had an expectation of working . . . .The [complaint] alleges simply that Plaintiff ‘returned to work for a meeting called by heremployer’ after a month-long suspension.”).



Guaranteed-pay protections may also suffer from additional, structuraldefects. First, call-in and send-home pay requirements address only one ofthe three separate problems caused by just-in-time scheduling: inadequatework hours. Guaranteed-pay requirements provide workers with more take-home pay by mandating a minimum number of paid hours in call-in andsend-home situations. Nevertheless, no contractual, statutory, or regulatoryrequirement bars last minute call-in and send-home practices entirely. In-stead, CBAs and state laws provide ex post compensation to the workerswho are called in and sent home unexpectedly. Compensation after the factmay increase workers’ pay, but it does not address the disruptive work hourvariability and unpredictability that workers like Great Wolf Resorts’ Jackiehave already experienced by the time they become eligible forcompensation.

Guaranteed-pay provisions suffer from a second, related, structural de-fect with respect to enforcement. Though call-in and send-home pay re-quirements are primarily compensatory in nature, they also attempt toregulate employer behavior indirectly by raising the cost of just-in-timescheduling practices through private enforcement action. That cost to em-ployers, however, does not take effect until a worker decides to take steps toenforce her rights, to engage in a union grievance process, or file a lawsuit.Such steps can be extremely costly, requiring time, financial resources, legalknowledge, belief in the efficacy of the grievance or litigation process, andmeaningful protections against retaliation.182 For the low-wage, hourly-paidservice workers who are the subject of this Article, these costs may simplynot be worth the benefit of enforcing their call-in or send-home rights, andemployers, therefore, may be insufficiently deterred.183

Third, there is some risk that guaranteed-pay provisions, if enactedmore broadly and enforced more rigorously, might provoke employers toabandon schedules altogether. Most CBA and state call-in and send-homepay requirements take as their starting point a worker’s established schedule.For example, Kansas law requires call-in pay when a worker must go towork “on a regular day off” or “after a regular work schedule.”184 Like-wise, a typical CBA send-home pay requirement refers to a worker’s report-ing “at the start of his regular shift.”185 Finally, whether a worker receivescompensation under California’s send-home pay law hinges largely on herexpectation of her work schedule on the day she is sent home. Courts inCalifornia have elevated this issue to a pleading requirement necessary tosurvive a motion to dismiss, stating, for example: “Without an allegation

182 Alexander & Prasad, supra note 144 (examining barriers to workers acting as private Rlaw enforcers).

183 While some states provide for state labor departments to enforce their guaranteed-payprovisions, there are no reported decisions of cases brought by state agencies to enforce guar-anteed-pay laws.

184 KAN. ADMIN. REGS. § 1-5-25 (2013).185 Kelly-Springfield Tire Co. Agreement, supra note 163, at art. V(2)(a). R



that Plaintiff was either scheduled to or had the expectation of working anormal shift, Plaintiff has failed to plead the element of expectation that isneeded to claim more than the minimum of two hours of reporting time payunder [the law].”186

Given that schedules are a threshold requirement in both the call-in andsend-home pay analyses, some employers might decide to avoid guaranteed-pay liability by abolishing schedules altogether and moving to an entirelynon-scheduled, on-call model. This is not as farfetched as it might sound:some restaurant managers already maintain a pool of on-call waitstaff readyto come to work when customer demand requires.187 Similarly, academicswriting in the human resources field have suggested that hotels should relyalmost entirely on temporary contract workers supplied by an outside agencyto fill their front-line service positions, summoning them only “as and whendemand requires them so to do.”188 There is no affirmative legal require-ment that employers maintain a schedule, and if employers can steer clear ofthe FLSA’s relatively lenient compensability requirements for waiting time(see Part III), then they would avoid any penalty associated with such amodel.189

To mitigate the harm that just-in-time scheduling causes to low-wageworkers (and to avoid the “doomsday scenario” of the entirely on-call work-place), state legislatures, Congress, the U.S. Department of Labor (DOL),and worker advocates should pursue the following strategies: (1) strengthenguaranteed-pay provisions in state laws and CBAs; (2) amend the FLSA topenalize employers’ use of fluctuating schedules; (3) adopt a DOL interpre-tation of “on-call time” under the FLSA that would encompass workers whoare unexpectedly called in to work; and (4) continue current union andworker campaigns, and launch new ones, around the importance of stableschedules.190

186 Johnson, 2012 U.S. Dist. LEXIS 140760, at *21 (emphasis added); see also Price v.Starbucks Corp., 122 Cal. Rptr. 3d 174, 182 (Cal. Ct. App. 2011).

187 Haley-Lock (2012), supra note 45, at 459. R188 Lai & Baum, supra note 26, at 98. R189 See, e.g., U.S. Dep’t of Labor, Wage & Hour Div., Opinion Letter No. FLSA2008-

14NA (Dec. 18, 2008), available at 2008 WL 5483054, at *2 (“While the FLSA providesmany labor standards, it does not generally regulate work schedules and work assignments.”).

190 An additional avenue for advocacy might be a legal claim of discrimination under TitleVII of the Civil Rights Act of 1964, but such a case may be difficult to win. See, e.g., NantiyaRuan & Nancy Reichman, Scheduling Shortfalls: Hours Parity as the New Pay Equity, 59VILL. L. REV. 35, 57–73 (2014) (discussing possible theories female and minority part-timeworkers might assert to challenge just-in-time scheduling practices under Title VII, but also theobstacles to successfully proving either disparate treatment or disparate impact). Additionally,focusing on the harms caused exclusively to female workers — while certainly real and conse-quential — risks obscuring the class-based harms that employers’ call-in and send-home prac-tices create for low-wage workers more generally.

Alternatively, the harms of just-in-time scheduling might be addressed through mitigation— for example, improving access to low-cost, quality childcare, providing income supports tolow-wage workers, and expanding public transportation options. A mitigation approach wouldnot address the legality of just-in-time scheduling practices, but it could soften their impacts onworkers.



These proposals are justified on at least two grounds. First, some mightargue that just-in-time scheduling represents an efficient outcome from aneconomic perspective, allowing employers to tailor their labor costs to cus-tomer demand. This Article demonstrates, however, that last minute call-insand send-homes in fact allow employers to externalize the true costs of do-ing business, by shifting risk onto low-wage, hourly-paid workers. In eco-nomic terms, this is a negative externality problem, just as when a factorypollutes the air around it, causing community members to develop respira-tory diseases, or a homeowner fails to maintain her house, thereby drivingdown neighbors’ property values.191 Negative externalities create ineffi-ciency, as a party that is the source of externalized costs may overproducegoods or services because externalization keeps the “felt” cost of productionartificially low. In the case of just-in-time scheduling, workers’ and theirfamilies’ absorption of their employers’ business risks means that employersmay make inefficient, or even reckless, planning and strategic decisions thatdo not fully account for the costs of staffing and scheduling. Regulation isappropriate in such situations to force the factory owner, the negligenthomeowner, and the cost-cutting employer to internalize the costs of theiractions. A regulatory response is particularly appropriate where, as here, theparties affected by the externality — low-wage, hourly-paid workers — maylack the ability to force change on their own.

Second, just-in-time scheduling practices had their origin in a theorythat equates inventory with labor. As outlined in Part I, the just-in-timephilosophy originated with the maxim that waste should be eliminatedthrough close management of inventory. But people are not goods, andhuman dignity demands that some workplace practices yield, even if em-ployers attempt to justify them on economic grounds.192 For example, childlabor practices, though profitable, offend our sense of human rights in theworkplace.193 Likewise, health and safety concerns require expensive miti-gation efforts, but our laws nevertheless require such efforts in order to pro-tect workers.194 Our labor and employment regulations recognize overworkas an evil, and demand premium overtime pay from employers that requiresuch practices.195 Where the negative human life consequences outweigheconomic advantage, law steps in to regulate employers and protect workers.The fact that schedule fluctuations are already regulated by collective bar-gaining agreements and state statutes evinces their pernicious effects. Just-in-time scheduling should thus be viewed as an affront to workplace fairness

191 John A. Henning, Jr., Mitigating Price Effects with A Housing Linkage Fee, 78 CALIF.L. REV. 721, 731 (1990) (“An externality arises when the producer of a good imposes a coston third parties, which he does not pay . . . .”).

192 See supra notes 31–35 and accompanying text. The negative externalities created by Rjust-in-time scheduling also call into question whether such practices are justified on economicgrounds.

193 29 U.S.C. § 212 (2012).194 Id. § 651.195 Id. § 207(a)(1).



ideals and should be limited, even as the employers that promulgate suchpractices argue for their continued use as measures to cut costs. Challengingthese scheduling practices — along with employers’ increasing reliance onpart-time, temporary, contingent, and contract labor196 — is particularly im-portant as the economic climate changes and profitable, but harmful, em-ployment practices become entrenched.

A. Broadening State Guaranteed-Pay Laws

Despite the potential limitations of statutory and regulatory guaranteed-pay provisions outlined above, there is some evidence that state-level call-inand send-home pay requirements can achieve worker-protective outcomes.Anna Haley-Lock studied restaurant workers in Vancouver, British Colum-bia, where a provincial law guarantees four hours’ pay at the minimum wageif a worker is scheduled for a full day of work, and two hours if scheduledfor a half day.197 She found that managers sent waiters home before the endof a scheduled shift much less frequently in Vancouver than in restaurants inWashington and Illinois, states without send-home pay laws.198 Chain man-agers in Vancouver were incentivized to be more careful and strategic thantheir U.S. counterparts in making staffing calculations, taking into accountrecent and historic shift needs, and having waitstaff engage in side work,such as food preparation or deep cleaning, when business did ebb.199

This account of the deterrent effect of guaranteed-pay laws supportsexpansion of call-in and send-home pay provisions to all states and tobroader categories of workers. As described in Part IV, current laws’ excep-tions, exemptions, and underenforcement by workers limit their effective-ness. While underutilization of the current protections may be addressed bylabor advocacy (as discussed in section V.D, infra), amending guaranteed-pay laws to broaden their coverage to additional categories of workers wouldbe a positive step in protecting against instability, as would expansion to thedozens of other states that have no such laws on the books. As summarizedin Tables 1 and 2 in the Appendix, about half of the states do not have call-instatutes or regulations, and the vast majority of states do not have send-homeprotections. Twenty-eight states have no form of guaranteed-pay require-

196 See sources cited supra note 16. R197 Haley-Lock, supra note 3, at 827. R198 Id. at 833 (“Notably, this practice was less commonly reported in Vancouver, where

the British Columbia minimum daily pay law limits employers’ freedom to engage in just-in-time staffing adjustments without incurring financial cost.”).

199 See id.



ment at all.200 Moreover, many states limit their coverage to particular in-dustries or certain subcategories of employees.201

Additionally, state laws could be amended to include provisions forhigher damages awards and attorneys’ fees.202 As currently written, manystate guaranteed-pay laws provide a claim to workers only for the few hoursof guaranteed pay that are lost when an employer fails to comply with a call-in or send-home pay requirement. Few rational low-wage workers or plain-tiffs’ attorneys likely would be willing to expend the time, resources, andeffort required to bring a lawsuit over two, three, or four hours of pay. Evenfewer workers can be expected to take that step if a worker is required tofund the cost of a lawsuit out of her own pocket. Instituting treble damageawards and allowing fee shifting, in which the losing defendant pays notonly the plaintiff’s damages but also her attorney’s fees, could help eliminatethese barriers to enforcement.203

While state guaranteed-pay laws do not prohibit last minute call-ins andsend-homes outright, they make these practices more expensive, and there-fore less attractive, to employers. Spreading call-in and send-home protec-tions across more states and more groups of workers, as well as increasingthe costs of noncompliance, could lessen the disruptive effects of just-in-time scheduling on low-wage workers’ lives.

B. Amending the FLSA

Whereas broadening state guaranteed-pay laws would be an importantstep in reducing employers’ reliance on just-in-time scheduling, federal leg-islation would enact comprehensive, uniform protection for all workers andfurther incentivize employers to minimize instability in low-wage work. Al-though the minimum wage has periodically increased,204 the FLSA has notbeen amended substantively since 1947.205 Expanding coverage to protectworkers from scheduling instability would recognize the new realities of the

200 Those states are Alabama, Alaska, Arizona, Georgia, Hawaii, Idaho, Indiana, Iowa,Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Montana (see supra notes 116 R& 152), Nebraska, New Mexico (see supra note 116), North Dakota, Ohio, Pennsylvania, RSouth Dakota, Tennessee, Texas, Utah, Vermont, Virginia, West Virginia, and Wisconsin.

201 See, e.g., 25 N.C. ADMIN. CODE 1.D.1504(a) (2013) (limiting guaranteed pay to stateemployees on on-call or emergency callback status).

202 We thank Alex Long for this insight.203 Though there is no published case on point, it appears that Rhode Island may be one

example of a state that allows prevailing plaintiffs in send-home pay cases to collect liquidateddamages and attorneys’ fees. See R.I. GEN. LAWS § 28-14-19.2 (2013).

204 See 29 U.S.C. § 206(a)(1) (2012) (mandating several yearly increases); see also Mini-mum Wage Laws in the States, U.S. DEP’T OF LABOR (Jan. 1, 2015), http://www.dol.gov/whd/minwage/america.htm, archived at http://perma.cc/ZCF8-3C3T (showing that many statesminimum wage rates are calculated on the basis of a cost-of-living formula).

205 See supra note 71 and accompanying text. R



American workplace, and would comport with the FLSA’s statutory purposeof protecting workers against exploitive employer policies and practices.206

The FLSA could be amended to adopt call-in and send-home pay struc-tures like those in place in state law. With respect to call-in pay, Michigan’scivil service regulations provide a model. In Michigan, many state employ-ees who are called in to work unexpectedly are eligible for three hours ofguaranteed pay at the premium overtime rate.207 The two exceptions to therule would provide some flexibility to employers who are faced with fluctu-ating customer demand. First, employees who are already on paid standbyor on-call status would not receive an additional premium call-in payment,but instead would receive payment only for their on-call hours and actualhours worked. Second, the call-in pay requirement would not apply if work-ers are called to work within a certain number of hours of their scheduledstart time. Michigan’s law specifies a three-hour grace period;208 a proposalmore respectful of workers’ non-work scheduling needs could be two hours.

With respect to send-home pay, California’s law could be duplicated asan amendment to the FLSA. California workers who report to work for ascheduled shift and are then sent home early are entitled to pay at their regu-lar rate for half of their scheduled shift, in any case no fewer than two ormore than four hours.209 Employers are protected via a variety of exceptions,

206 In July 2014, companion bills were introduced in the U.S. House and Senate that wouldhave accomplished much of the reform proposed in this section, albeit through novel legisla-tion, rather than through amendments to the FLSA as we suggest. See Schedules That WorkAct, S. 2642, 113th Cong. (2014); H.R. 5159, 113th Cong. (2014). The legislation would havegiven workers the right to request a number of specific schedule terms (see id. at § 3); wouldprotect workers from retaliation for such requests, (see id. § 5(b)); and, for requests madebecause of a “serious health condition,” caregiving responsibilities, “enrollment in a career-related educational or training program,” or a part-time worker’s second job, would presump-tively require the employer to grant the request, absent a “bona fide business reason” (id.§ 3(c)). The bill also would have required both call-in pay (see id. § 4(a)(2) (one hour’s worthof wages if a worker is called in with less than twenty-four hours’ notice)) and send-home pay(id. § 4(a)(1) (four hours of wages)), and would have mandated that employers make shiftschedules available with fourteen days’ lead time before taking effect (id. § 4(c)(2)). See gen-erally NATIONAL PARTNERSHIP FOR WOMEN & FAMILIES, SCHEDULES THAT WORK FACT SHEET

(July 2014), available at http://www.nationalpartnership.org/research-library/workplace-fair-ness/equal-opportunity/schedules-that-work-act-fact-sheet.pdf, archived at http://perma.cc/T55U-E583. Although both bills died in committee, they were an important first step in draw-ing attention and forging a national solution to scheduling instability and work-hour insecurity.Similar initiatives have been enacted at a local level. In November 2014, San Francisco passedan ordinance requiring chain stores to give two weeks’ notice to employees of their schedulesand levies a penalty called “predictability pay” if stores fail to do so. San Fran., Cal., FairScheduling and Treatment of Formula Retail Employees Ordinance, No. 141024 (Nov. 25,2014); see also Marianne Levine, San Francisco Passes First-in-Nation Limits on WorkerSchedules, POLITICO (Nov. 25, 2014), http://www.politico.com/story/2014/11/san-francisco-limits-on-worker-schedules-113177.html#ixzz3OWqgsSLK, archived at http://perma.cc/QU93-3VQE.

207 MICH. CIVIL SERV. R. 5-4.4 (2013).208 Id.209 CAL. CODE REGS. tit. 8, §§ 11010–11150 (subd. 5(A) of each section) (2013).



including the same exclusion for workers already on paid standby status andin circumstances where the lack of work is beyond the employer’s control.210

An additional possible FLSA amendment is a mandate that employersadopt a set schedule for workers and notify them at least one month in ad-vance. This one month notice period is quite modest in comparison to thescheduling and notice regimes in place in some European countries: “Danishretail bargaining agreements mandate 16 week advance notice of scheduleswhile German collective bargaining agreements mandate 26 weeks advancenotice.”211 Under an amended FLSA, workers who wish to waive thisscheduling notice requirement, and to make themselves eligible for paid on-call or standby status, for example, would be free to do so by written agree-ment with their employer.

Finally, the FLSA could be amended to institute a tiered minimumwage, whereby workers subject to just-in-time scheduling would earn moreper hour on a scale dependent on the severity of their schedule fluctuations.These workers would receive a wage premium for the income and schedul-ing risk they take on, much like the compensating wage differential thatsome workers in hazardous jobs receive in exchange for facing increasedhealth and safety risks.212 A tiered minimum wage would also require em-ployers to compensate workers who have to maintain open availability inorder to respond to last minute call-ins. Employers would be forced to payfor what they are now getting for free, which is essentially an option onworkers’ leisure time. Any of these reforms would reduce workers’ incomeinstability by establishing an income floor and lessen hours instability bydiscouraging employers’ use of fluctuating schedules.

C. Changing the Department of Labor’s Interpretationof FLSA “On-Call” Time

As an alternative to amending the FLSA itself — admittedly a politi-cally challenging proposition — the U.S. Department of Labor (“DOL”)might adopt an interpretation of the FLSA that treats workers who are sub-ject to last minute call-in practices as on-call workers. For these workers,the hours spent waiting to be called to work would be compensable. Asdiscussed in Part III, supra, courts engage in a fact-intensive inquiry to de-termine whether workers’ waiting time must be paid as working time under

210 Id. (subd. 5(C)–(D) of each section).211 Carre & Tilly, supra note 25 at 33; see also Watson & Swanberg, supra note 61, at R

422–35 (identifying voluntary employer practices and public policy options to address employ-ees’ scheduling needs, including employer-provided opportunities for input regarding workschedules).

212 See W. KIP VISCUSI, EMPLOYMENT HAZARDS: AN INVESTIGATION OF MARKET PER-

FORMANCE 241–75 (1979) (showing correlation between both objective and subjective job riskand workers’ receipt of compensating wage differentials).



the FLSA.213 Current case law would likely exclude most workers who arecalled in to work at the last minute.214

To provide greater protection to these workers, the Wage and Hour Di-vision of the DOL might issue a Field Assistance Bulletin215 clarifying thecircumstances under which the time that workers spend waiting, on thechance that they might be called in to work, is compensable. In such aninterpretation, the fact that a worker is not formally labeled an “on-call” or“standby” employee should not bar her from being compensated for herwaiting time. In addition, if a worker is required to report to work due to alast minute call-in, or else be fired, her waiting time should be per se com-pensable. Such a policy would extend protection to circumstances like thosedescribed by Susan Lambert, where retail workers were expected to offernearly unlimited “open availability” to their employers:

Many employers specified that being available to work a widespan of days and shifts was a necessity for employment at thepoint of hiring. For one retailer, “open availability” — being will-ing to work any hours the store is open — was a condition for full-time employment and in all retailers, [human resources] staff saidthey gave priority when hiring to applicants who could work vary-ing shifts. Managers often expected employees to be available theentire week and scheduled workers accordingly by varying indi-viduals’ work days and shifts. Often this meant that employeeswould need to be prepared to work at virtually any time of the dayor night. A worker might only work three days a week, but wouldneed to prepare for seven days of work, just in case.216

Of course, the DOL’s interpretation would need to define the amount ofwaiting time that would be paid; perhaps the employer’s operating hours,which represent the full length of time during which a worker might becalled in at the last minute, would provide the beginning and end point ofcompensable time. Such an interpretation, and the DOL’s resulting enforce-ment activity, would make just-in-time call-in practices highly expensive,and therefore highly unattractive, to employers. It would also prevent em-ployers from adopting an all on-call scheduling model, as employers would

213 See, e.g., Renfro v. City of Emporia, 948 F.2d 1529, 1537 (10th Cir. 1991); Cent. Mo.Tel. Co. v. Conwell, 170 F.2d 641, 646 (8th Cir. 1948); Campbell v. Jones & Laughlin SteelCorp., 70 F. Supp. 996, 997 (W.D. Pa. 1947).

214 See supra notes 104–107 and accompanying text. R215 See Field Assistance Bulletins, U.S. DEP’T OF LABOR, WAGE & HOUR DIV., http://www

.dol.gov/whd/FieldBulletins (last visited Dec. 21, 2014), archived at http://perma.cc/74UQ-UFKY (“Field Assistance Bulletins provide Wage and Hour Division (WHD) investigatorsand staff with guidance on enforcement positions and clarification of policies or changes inpolicy of WHD. These bulletins are developed under the general authority to administer thevarious laws enforced by WHD. They typically provide positions reflecting changes or clarifi-cations in the administration of these laws and related regulations based upon court decisions,legislative changes and opinions of the WHD Administrator.”).

216 Lambert, supra note 3, at 1217. R



be forced to compensate workers for rearranging their private lives to ac-commodate a possible disruptive last minute call-in to work.217

D. Engaging in Union and Worker Campaigns

A final reform strategy centers on the power of workers themselves tomake change in the workplace. While union CBAs have long addressedscheduling instability through guaranteed-pay provisions, these provisionsmay be insufficiently expansive to eliminate the harm caused to workers, asoutlined in Part IV. Moreover, the fact that only 6.6% of private sectorworkers are unionized reduces CBAs’ effectiveness in addressing thistrend.218

Advocacy both within and outside traditional labor unions, however,has made gains for low-wage workers around the issue of scheduling stabil-ity. For example, the Retail Action Project in New York City has launched a“Just Hours” campaign, targeting unpredictable scheduling practices in re-tail stores, which has received significant media attention.219 Additionally,in 2011, Wal-Mart workers began the “Our Wal-Mart” campaign, presentinga “Declaration of Respect” to Wal-Mart management in Arkansas, includingas one of their principles the need to create “dependable, predictable workschedules.”220 Likewise, in 2012, the Retail Wholesale and DepartmentStore Union Local 1-S won stable scheduling in their employment at Macy’sand Bloomingdales stores in New York City.221

Not only does advocacy by unions and worker groups have the poten-tial to convince service sector employers such as Wal-Mart to change theirpractices voluntarily, but it can also inform workers of their existing rightsunder state call-in and send-home pay laws and assist them in taking steps tobecome rights enforcers. The power of worker movements might also beharnessed to push for the types of reforms proposed earlier in this Part:

217 Of course, if the DOL were to adopt such an interpretation, employers might respondby overscheduling workers, having workers report at the scheduled time, and then sendingthem home early in cases of overstaffing. The possibility that employers would engage in suchstrategic behavior further highlights the need for send-home pay guarantees to create incomeand schedule stability at both ends of the problem.

218 Economic News Release: Union Members Survey, BUREAU OF LABOR STATISTICS (Jan.23, 2013), http://www.bls.gov/news.release/archives/union2_01232013.htm, archived at http://perma.cc/F4DG-DXLN (noting that the overall union membership rate in 2012 is down from2011 with only 6.6% of private-sector workers in a union, which is five times lower than thatof public-sector workers). See also Steven Greenhouse, Share of the Work Force in a UnionFalls to a 97-Year Low, 11.3%, N.Y. TIMES (Jan. 21, 2013), http://www.nytimes.com/2013/01/24/business/union-membership-drops-despite-job-growth.html, archived at http://perma.cc/KX47-YXGZ.

219 Just Hours New York: Restoring the Fair Workweek, RETAIL ACTION PROJECT, http://retailactionproject.org/campaigns-2/sustainable-scheduling-new (last visited Dec. 21, 2014),archived at http://perma.cc/Z9CN-53VC.

220 About Us, OUR WALMART, http://forrespect.org/our-walmart/about-us (last visitedAug. 12, 2013), archived at http://perma.cc/AF7W-Z88R.

221 Freleng, supra note 12. R



broadening state guaranteed-pay laws, amending the FLSA, and changingthe DOL’s interpretation of on-call time.

CONCLUSION

Today’s low-wage workers face increased instability in their schedules.Last minute call-ins and send-homes, borne out of a just-in-time schedulingphilosophy, can cause a variety of significant financial, logistical, and emo-tional problems for workers and their families. This Article has examinedtwo legal remedies for workers who are subject to call-in and send-homepractices: guaranteed-pay provisions in unionized workers’ collective bar-gaining agreements and state law call-in and send-home pay requirements.While both are steps in the right direction, they are limited in their ability toaddress the growing hours and income crisis for hourly service workers;therefore, new approaches are needed. Broadening existing guaranteed-paylaws, enacting new federal scheduling rights, recasting called-in workers ason-call workers, and harnessing the power of worker movements are allstrategies for reducing work hour fluctuations, smoothing workers’ income,and stabilizing low-wage work.



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R.

AD

MIN

. R

. 83

9-or

ove

rtim

eO

rego

n***

*T

rave

l tim

eA

ll em

ploy

ees

020-

0045

(20

13)

rate

, as

appl

icab

le



uara

ntee

dH

ours

of

Stat

eP

rovi

sion

(s)

Pay

Pay

Rat

eE

ligib

le E

mpl

oyee

sE

xcep

tion

s &

Oth

er N

otes

Doe

s no

t ap

ply

whe

n:R

egul

ar r

ate

•Cal

l-in

is

canc

eled

and

em

ploy

eeS.

C.

CO

DE A

NN

.pl

us a

nyO

vert

ime-

elig

ible

sta

te e

mpl

oyee

s (i

fre

ceiv

ed a

dvan

ce n

otic

eSo

uth

Car

olin

aR

EG

S.

19-7

05.0

7(D

)Tw

oap

plic

able

appr

oved

by

agen

cy)

•Em

ploy

ee r

epor

ts d

espi

te e

mpl

oyer

’s(2

014)

shif

tat

tem

pt t

o no

tify,

but

ref

uses

alte

rnat

edi

ffer

entia

lw

ork

Ove

rtim

e-el

igib

le s

tate

em

ploy

ees

and

Reg

ular

rat

eov

ertim

e-ex

empt

sta

te e

mpl

oyee

s or

WA

SH

. A

DM

IN.

CO

DE

or o

vert

ime

empl

oyee

s el

igib

le f

or l

aw e

nfor

cem

ent

Was

hing

ton

Two

§35

7-28

-185

(20

13)

rate

, as

over

time

(if

appr

oved

by

empl

oyer

),ap

plic

able

exce

pt:

•Em

ploy

ees

on s

tand

by s

tatu

s

WY

O.

CO

MP.

POL

ICY

Wyo

min

gTw

oR

egul

ar r

ate

Ove

rtim

e-el

igib

le s

tate

em

ploy

ees

Ch.

4 §

7 (2

010)

* C

alif

orni

a’s

call-

in p

ay r

equi

rem

ents

are

fou

nd in

wag

e or

ders

that

app

ly to

indi

vidu

al in

dust

ries

. N

ever

thel

ess,

the

requ

irem

ents

are

the

sam

e ac

ross

all

indu

stri

es,

and

the

wag

e or

ders

’ co

vera

ge i

s ex

haus

tive.

** I

llino

is d

oes

not h

ave

a fo

rmal

cal

l-in

pay

sta

tute

or

regu

latio

n. N

ever

thel

ess,

an

empl

oyee

’s tr

avel

tim

e “f

or th

e em

ploy

er’s

ben

efit,

” su

ch a

s w

hen

the

empl

oyee

mus

t re

port

“in

res

pons

e to

an

emer

genc

y ca

ll ba

ck t

o w

ork

outs

ide

his/

her

norm

al w

ork

hour

s,”

is g

iven

as

an e

xam

ple

of t

ime

that

wou

ld b

e co

mpe

nsab

le a

sw

orki

ng t

ime

unde

r th

e st

ate

min

imum

wag

e la

w.

See

ILL. A

DM

IN. C

OD

E t

it. 5

6, §

210.

110

(201

3).

Paid

tra

vel

time

ther

efor

e fu

nctio

ns a

s a

call-

in p

ay g

uara

ntee

.**

* M

onta

na’s

reg

ulat

ion

does

not

itse

lf m

anda

te c

all-

in p

ay, b

ut g

ives

for

ce to

and

illu

stra

tions

of

call-

in o

r ca

ll-ba

ck p

ay r

equi

rem

ents

in e

mpl

oym

ent a

gree

men

tsne

gotia

ted

betw

een

empl

oyer

s an

d em

ploy

ees.

It i

s co

pied

dir

ectly

fro

m th

e fe

dera

l reg

ulat

ion

impl

emen

ting

the

FLSA

, 29

C.F

.R. §

778.

221

(201

4), w

hich

con

cern

sw

heth

er c

all-

in p

ay is

cou

nted

as

hour

s w

orke

d fo

r pu

rpos

es o

f ca

lcul

atin

g ov

ertim

e. N

ew M

exic

o’s

regu

latio

n le

aves

the

deci

sion

abo

ut w

heth

er to

issu

e ca

ll-in

pay

,an

d ho

w m

uch,

to in

divi

dual

sta

te a

genc

ies.

N.M

. CO

DE R

. §1.

7.4.

15(B

) (L

exis

Nex

is 2

013)

(“A

genc

ies

may

est

ablis

h a

min

imum

num

ber

of h

ours

to b

e pa

id w

hen

empl

oyee

s ar

e ca

lled

back

in

acco

rdan

ce w

ith t

heir

age

ncy

polic

y.”)

.**

** L

ike

Illin

ois,

Ore

gon

does

not

hav

e a

form

al c

all-

in p

ay s

tatu

te o

r re

gula

tion.

Sta

te l

aw r

equi

res

paym

ent

of a

ny t

rave

l tim

e “s

pent

in

exce

ss o

f tim

e sp

ent

inno

rmal

hom

e-to

-wor

k tr

avel

” w

hen

an e

mpl

oyee

“ha

s le

ft th

e em

ploy

er’s

pre

mis

es o

r job

site

aft

er c

ompl

etin

g th

e da

y’s

wor

k an

d is

sub

sequ

ently

cal

led

out t

o tr

avel

asu

bsta

ntia

l dis

tanc

e [d

efin

ed a

s “b

eyon

d a

30-m

ile r

adiu

s of

the

empl

oyer

’s p

lace

of

busi

ness

”] to

per

form

an

emer

genc

y jo

b.”

See

OR

. AD

MIN

. R. 8

39-0

20-0

045(

2)(2

013)

.†T

he s

ame

regu

lato

ry l

angu

age

appe

ars

to a

pply

to

both

cal

l-in

and

sen

d-ho

me

situ

atio

ns.



Tabl

e 2:

Sta

te S

end-

Hom

e P

ay L

aws

Gua

rant

eed

Hou

rs o

fSt

ate

Pro

visi

onP

ayP

ay R

ate

Elig

ible

Em

ploy

ees

Exc

epti

ons

& O

ther

Not

es

Hal

f of

CA

L.

CO

DE R

EG

S.

sche

dule

dD

oes

not

appl

y w

hen

oper

atio

nstit

. 8,

shif

t, bu

t no

cann

ot b

egin

/con

tinue

due

to

thre

ats

toA

ll em

ploy

ees,

exc

ept:

Cal

ifor

nia*

†§

1101

0–11

150

few

er t

han

Reg

ular

rat

eem

ploy

ees

or p

rope

rty,

pub

lic u

tility

•Em

ploy

ees

on p

aid

stan

dby

stat

us(s

ubd.

5 o

f ea

chtw

o an

d no

failu

re,

or c

ircu

mst

ance

s ou

tsid

ese

ctio

n) (

2013

)m

ore

than

empl

oyer

’s c

ontr

olfo

ur h

ours

Four

Em

ploy

ees

in m

erca

ntile

tra

de m

ay(e

mpl

oyee

sw

aive

rig

ht t

o fo

ur h

ours

of

pay

and

in m

erca

ntile

rece

ive

only

tw

o ho

urs

of p

ay w

hen

trad

e)R

egul

ar r

ate;

CO

NN

. A

GE

NC

IES

Em

ploy

ees

in m

erca

ntile

tra

de (

§31

-re

gula

rly

sche

dule

d em

ploy

men

t w

asno

t le

ss t

han

Con

nect

icut

†R

EG

S.

§31

-62-

D2,

62-D

2);

empl

oyee

s in

res

taur

ant

and

less

tha

n fo

ur h

ours

if

the

wai

ver

Two

min

imum

E1(

b) (

2014

)ho

tel

occu

patio

ns (

§31

-62-

E1(

b))

appe

ars

in a

wri

tten

agre

emen

t(e

mpl

oyee

sw

age

betw

een

the

empl

oyer

and

em

ploy

eein

res

taur

ant/

that

is

appr

oved

by

stat

e L

abor

hote

lD

epar

tmen

t (§

31-6

2-D

2(d)

)oc

cupa

tions

)

Les

ser

ofR

egul

ar r

ate

four

hou

rs o

rfo

r ho

urs

the

num

ber

D.C

. C

OD

E M

UN

.w

orke

d;D

istr

ict

ofof

hou

rs i

nR

EG

S.

tit.

7m

inim

umA

ll em

ploy

ees

Col

umbi

aem

ploy

ee’s

§90

7.1

(201

3)w

age

for

regu

larl

yho

urs

not

sche

dule

dw

orke

dsh

ift



uara

ntee

dH

ours

of

Stat

eP

rovi

sion

Pay

Pay

Rat

eE

ligib

le E

mpl

oyee

sE

xcep

tion

s &

Oth

er N

otes

All

empl

oyee

s sc

hedu

led

to w

ork

for

455

MA

SS.

CO

DE

Min

imum

at l

east

thr

ee h

ours

, ex

cept

:M

assa

chus

etts

RE

GS.

2.03

(1)

Thr

eew

age

•Em

ploy

ees

of I

RS-

clas

sifi

ed(2

013)

char

itabl

e or

gani

zatio

ns

Reg

ular

rat

eSp

ecif

ied

inA

ll em

ploy

ees

subj

ect

to e

mpl

oym

ent

MO

NT.

AD

MIN

. R

.or

ove

rtim

eM

onta

na**

empl

oym

ent

agre

emen

t pr

ovid

ing

for

such

24.1

6.25

22 (

2013

)ra

te,

asag

reem

ent

com

pens

atio

nap

plic

able

Doe

s no

t ap

ply

whe

re:

•Em

ploy

er m

ade

good

fai

th e

ffor

t to

N.H

. R

EV

. ST

AT.

All

empl

oyee

s, e

xcep

t:no

tify

empl

oyee

not

to

repo

rtN

ew H

amps

hire

AN

N.

§27

5:43

-aTw

oR

egul

ar r

ate

•Em

ploy

ees

of c

ount

ies

or•E

mpl

oyee

rep

orts

des

pite

em

ploy

er’s

(201

3)m

unic

ipal

ities

atte

mpt

to

notif

y, b

ut r

efus

esal

tern

ate

wor

k

Doe

s no

t ap

ply

whe

n em

ploy

er h

asm

ade

avai

labl

e th

e m

inim

um n

umbe

rN

.J.

AD

MIN

. C

OD

Eof

wor

k ho

urs

agre

ed u

pon

by t

heN

ew J

erse

y†O

neR

egul

ar r

ate

All

empl

oyee

s§

12:5

6-5.

5 (2

013)

empl

oyer

and

em

ploy

ee p

rior

to

com

men

cem

ent

of w

ork

on t

he d

ayin

volv

ed

Les

ser

ofA

ll em

ploy

ees,

exc

ept:

four

hou

rs o

r•E

mpl

oyee

s su

bjec

t to

wag

e or

der

ofth

e nu

mbe

rth

e C

omm

issi

oner

of

Lab

orN

.Y.

CO

MP.

CO

DE

Sof

hou

rs i

nM

inim

um•E

mpl

oyee

s of

a n

onpr

ofitm

akin

gN

ew Y

ork†

R.

& R

EG

S.

tit.

12,

empl

oyee

’sw

age

inst

itutio

n th

at h

as e

lect

ed t

o be

§14

2-2.

3 (2

013)

regu

larl

yex

empt

fro

m c

over

age

unde

r a

sche

dule

dm

inim

um w

age

orde

rsh

ift

(§14

2-1.

1)



uara

ntee

dH

ours

of

Stat

eP

rovi

sion

Pay

Pay

Rat

eE

ligib

le E

mpl

oyee

sE

xcep

tion

s &

Oth

er N

otes

Doe

s no

t ap

ply

whe

n:G

reat

er o

f•E

mpl

oyer

pos

ts a

not

ice

polic

y in

the

one

hour

or

wor

kpla

ce,

com

mun

icat

es i

t to

the

OR

. A

DM

IN.

R.

half

of

the

min

or,

and

follo

ws

it in

mak

ing

aO

rego

n83

9-02

1-ho

urs

inR

egul

ar r

ate

Min

or e

mpl

oyee

sgo

od f

aith

eff

ort

to n

otif

y m

inor

not

0087

(5)–

(8)

(201

3)em

ploy

ee’s

to r

epor

tsc

hedu

led

•Cir

cum

stan

ces

beyo

nd e

mpl

oyer

’ssh

ift

cont

rol

prev

ent

perf

orm

ance

of

min

or’s

sch

edul

ed w

ork

R.I.

GE

N.

LA

WS

Rho

de I

slan

dT

hree

Reg

ular

rat

e§

28-1

2-3.

2 (2

012)

* C

alif

orni

a’s

send

-hom

e pa

y re

quir

emen

ts a

re f

ound

in w

age

orde

rs th

at a

pply

to in

divi

dual

indu

stri

es.

Nev

erth

eles

s, th

e re

quir

emen

ts a

re th

e sa

me

acro

ssal

l in

dust

ries

, and

the

wag

e or

ders

’ co

vera

ge i

s ex

haus

tive.

** M

onta

na’s

reg

ulat

ion

does

not

its

elf

man

date

sen

d-ho

me

pay,

but

giv

es f

orce

to

and

illus

trat

es t

he u

se o

f se

nd-h

ome

pay

requ

irem

ents

in

empl

oym

ent

agre

emen

ts n

egot

iate

d be

twee

n em

ploy

ers

and

empl

oyee

s. It

is c

opie

d di

rect

ly fr

om th

e fe

dera

l reg

ulat

ion

impl

emen

ting

the

FLSA

, whi

ch c

once

rns

whe

ther

send

-hom

e, s

how

up,

or

repo

rtin

g pa

y is

cou

nted

as

hour

s w

orke

d fo

r pu

rpos

es o

f ca

lcul

atin

g ov

ertim

e. 2

9 C

.F.R

. §

778.

220

(201

4).

† T

he s

ame

regu

lato

ry l

angu

age

appe

ars

to a

pply

to

both

cal

l-in

and

sen

d-ho

me

situ

atio

ns.

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